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CASESDECIDED

IN THE SUPREME COURT

CAPE OF GOOD HOPE,

DUBING THE YEAR

1877,WITH TABLE OP OASES AND ALPHABETICAL INDEX.

VOL. VII.

REPORTED BY

EBEN. J. BUCHANAN,OF THE INNER TEMPLE, BAERISTEE-AT-IAW.

J. C. JUTA & CO.

CAPETOWN KING WILLIAMSTOWNPORT ELIZABETH EAST LONDONGBAHAMSTOWN STELLENBOSCHJOHANNESBURG DURBAN

1903.

JUDGES OF THE SUPREME COURT

DURIJNG T YEAR 1877.

De Villiers, Sie J. H., Chief Justice.

Denyssen, p. J., Justice.

FiTZPATBiCK, J. C, Justice.

Attorneys-General

:

—S. Jacobs.

A. Stockensteom [Appointed 22nd August, 1877].

MEMORANDUM.

The mode of citation of the Supreme Court Reports, edited both byJames Buchanan and by E, -J. Buchanan, will be altered, so as to makeall these volumes of Reports form one complete set. The volumes will be

cited by numbers instead of by the year. Thus the volume of Reports

for the year

—

1 Buchanan's Supreme Court Reports.









1868 wi)

CASES REPORTED IN THIS VOLUME.

Behrens vs. Berg

Beukes vs. Steyn

Booi vs. Blake

Borcherds, ReBotes vs. Meere

Brinkman vs. Lindt

QsiGya Bros. vs. Lekhraj

Gaimcross, BeColonial Secretary vs. Breda's Curator

vs. Davidson

vs. Southey and Others

Combrink vs. Combrink and Wilson

David vs. Abdol Rajieb

De Jager vs. De Jager

Dieperink vs. Dieperink

Dreyer vs. Cloete .

.

Du Plessis vs. WiUdnsonEnslin vs. Haupt .

.

Free Wrights' Association, Ee .

.

Grundling vs. Executors of StimmeHodgson & Co. vs. Porter & Co. .

.

Holland vs. Commissioner of Crown Lands and Public WorksIrvine & Co. vs. " Elise "

.

.

Joubert vs. Executor of RussouwLatsky vs. Surveyor-General

Lee vs. Schonnberg

Le Sueur vs. GearyLippert & Co. vs. Van Rensberg .

.

Magistrates' Cases ReviewedManuel vs. Cape Town Town Council

Mclntyre vs. Goodison

McLeod's Trustees vs. Benjamin

Meiring vs. Liebenberg

Meiriug's Executor Dative vs. Meiring's Executors TestamentaryNel vs. LouwOosthuysen vs. Muller

Paterson vs. Kemp's Executors

vs.. McLoughlin and Solomon & Co. .

.

vs, S. Solomon & Co. and McLoughlin

Perrin's Trustee vs. Bombail

PAGE

138

22

113

72

139

60

48

122

1

1

1

72

81

140

92

142

28

58

57

71

100

105

148

21

68

136

115

42

19

107

83

152

53

93

133

129

74

62

130

50

a 2

Queen vs. Chabaudvs. Meyer .

.

vs. Openty . .

vs. Van Zyl .

.

Raubenheimer ?w. CampherRobertson vs. Wilkinson . .

Ross vs. Dramat . .

Shields vs. Van Rooyen and Wehmeyr . .

Smith vs. Morum Bros. .

.

Standard Bank vs. Goodchild and Brittain

Steenkamp vs. KrugerStellenbosch Bank vs. MaderStephan Bros. vs. Loubscher

Tesselaar's Trustee vs. Blanckenberg's Executors and Mrs. Tesselaar

Upington vs. Murray and St. Leger

Van der Byl & Co. vs. Smit

vs. SolomonVan der Merwe vs. Executors of VVan der Spuy vs. MaddisonVan Niekerk vs. Barber . .

vs. Raubenheimer'

s

Walter vs. Powrie .

.

Wiezel vs, Wiezel .

.

an der Merwe

Executrix

PAGE14»

19

85

87

18

43

132

4420

12a

45

114

137

54

31

16

25

89

97

126

51

35

92

INDEX TO THE VOLUME.

Act No. 15, 1855.—See Purchase and Sale. Principal and Agent.

No. 20, 1856.—See Husband and Wife. Magistrate.

No. 9, 1857.—See Magistrate.

No. 1, 1861.—See Municipality. Negligence.

No. 7, 1865.—See Beacons.

No. 3, 187.3.—See Trustee Voluntary Association.

No. 19, 187-t.—See Railways.

No. 21, 1876.—See Magistrate.

No. 22, 1876.—See Will. Witness.

Act of Insolvency.—See Insolvency.

Adultery.—See Husband and Wife. Divorce.

Ad fundandtjm jurisdictionem.—See Jurisdiction.

Affidavit.—An affidavit by a witness made ex parte, for an inter-

locutory application, not allowed to be used as evidence at the

trial at which the witness through illness was unable to attend.

Grundling vs. Executors of Stimme.

.

. . . . .

.

. . 71

Affidavits held sufficient evidence upon which to release from

curatorship a person who had previously been found to be of

unsound mind. Re Borcherds . . . . . . . . . . 72

Affidavit held insufficient in a provisional case to prove dis-

honour of a promissory note, there being a resident Notary

Public who might have been employed to protest the note in

due form. Stdlenhosch Bank vs. Mader . . . . . . . . 114

Agent.—See Principal and Agent.

Appeal.—Where judgment was given against defendant in the

Court below with costs, ordering him to pass transfer, and on

appeal by defendant the judgment was varied by adding a con-

dition that plaintiff was to give security over the property for

a debt due by him to plaintiff, although the judgment against

defendant for costs in the Court below was sustained, the

defendant was allowed his costs of appeal, as he had obtained a

substantial alteration of the judgment. Steenkamp vs. Kruger 45

One of the Judges of the Eastern Districts' Court, sitting in

Chambers, set aside an arrest, whereupon the plaintiff appealed

to the Supreme Court. Held,—that the appeal in the first

instance was to the Eastern Districts' Court. Perrins' Trustee

vs. Borribail . . . . .

.

.

.

.

.

. • • • . • 50

Appropriation of Soil.—See Joint Estate.

Aerest.—The arrest of a debtor about to leave the Colony is for the

purpose of enabling the plaintiff to obtain judgment, which

being obtained the debtor is discharged from custody. Robertson

vs. Wilkinson .. .

.

.

.

.

.

•

.

• • • 43

PAOE

AfiEEST.—The defendant, a Parsee merchant who had brought goods

to the Colony for sale, was arrested under the 8th Rule of Court,

he being about to depart from the Colony without satisfying a.

claim for £36 for rent. The defendant alleged he was leaving

only for a temporary purpose, with the intention of shortly

returning, and that he was leaving in the Colony goods of the

value far exceeding plaintiffs' claim, which he disputed. The

Court refused to set aside the arrest. Caffyn. Bros. vs. Lekhraj 48

Attesting Witnesses' Act.—See Will. Witness.

Attorney.—A town attorney, who was required and had attended

as a witness at the hearing of a case in the Circuit Court,

entitled to witness' expenses in addition to costs payable to himas attorney in the case. Shields and Van Rooyen vs. Wehmeyr 44

A Judge of his own motion called upon an attorney to shewcause to the Supreme Court why he should not be struck off

the roll, in consequence of circumstances which transpired at a

criminal trial. Re Cairncross .

.

.

.

.

.

.

.

.. 122

An attorney suspended from practice for misconduct, in not

accounting for monies received by him for a client, notwith-

standing that such attorney had been criminally tried andacquitted of the theft of said money . . . . .

.

. . lb;

Atjthobity to Prosecute.^See Circuit Court. Prosecutor.

Beacons.—See Land Beacons.

Bequest.—See Will. Joint Estate.

Bond.—Provisional sentence granted on a summons on a mortgage

bond against a surety who was also bound as co-principal

debtor, though the summons did not tender cession of action

against the debtor. Lippert <Ss Co. vs. Van Rensberg . . . . 42

The attachment of a vessel in port granted, to found jurisdic-

tion in an action against the captain and owners upon a

bottomry bond. Irvine tH- Co. vs. " Elise ".

.

. . . . 148

Bottomry.—See Bond.

Breach op the Peace.—To constitute the crime of contravening

section 18, of Ordinance No. 25, 1847, the offence complainedof must have been committed in a thoroughfare or public place.

Queen vs. Meyer . . . . . . . . .

.

.

.

. . 19

Where a person is convicted of contravening section 18, of

Ordinance No. 25, 1847, the Magistrate cannot pass sentence of

imprisonment without giving the option of paying a fine . . 76;

Creating a disturbance in the public street is not a contraven-tion of section 18, of Ordinance No. 25, 1847 Ih

Oabribr.—The plaintiff entered into a contract with the defendantto carry goods and produce from the railway station " to anyplace within one mile of the said station," at 2s. M. per ton,and at an additional rate to all places beyond that distance.Certain wool was carted by plaintiff to wool-wash establishmentswithin one mile of the station, if the distance was measured ina straight line, but more than a mile by road. Held, that the

; PAGEdistance must be measured along the road, which the carrier

must necessarily travel, and that plaintiff was consequently

entitled to the additional rate. Holland vs. Commissioner of

Crown Lands and Public Works . . . . . . . . . . 10.5

Cession of Action.—See Surety. Provisional Sentence. Bond.Chambers, Order in.—See Appeal.

GiKCUiT CouBT.—In the absence of the letter of the Attorney-

General, appointing a barrister to prosecute at a sitting of the

Circuit Court, the Resident Magistrate of the district, under the

14th section of Ordinance No. 8, 1852, gave a written authority

to a barrister to appear in Court and to conduct the prosecu-

tions. An objection taken by a prisoner to such appointment

overruled. Queen vs. Van Zyl . . . . . . . . . . 87

Semble,—that a Circuit Court has jurisdiction to remove anexecutor dative from office. Botes vs. Meere . . . . . . 139

OiviL Action.—The fact that misappropriation of funds renders a

public officer criminally liable, does not bar the Crown of its

civil remedy against such officer. Colonial Secretary vs. Breda's

Curator and Others . . . . . . . . . . . . . . 1

In a civil action for damages for instituting legal proceedings,

the defendant knowing that he had no legal right for so doing,

the declaration must aver malice, and malice must be proved.

Beukes vs. Steyn .

.

.

.

.

.

.

.

.

.

. . . . 22

Civil Servant.—See Pubhc Officer.

Commissioner.—See MunicipaHty.

Compulsory Sequestration.—See Insolvency.

Condition.—See Restraint of Trade. Contract. Lease.

Contract.—An executory contract entered into on behalf of and to

the prejudice of a minor, requires express ratification by the

minor after attaining his majority to be enforceable against him.

Van der Byl & Co. vs. Solomon . . . . . . . . . . 25

Defendant's father bought at auction certain erven of land in

the minor's name at a price exceeding their value but did not

pay the price or receive transfer. After attaining his majority

the minor offered to pay a small forfeit rather than complete the

purchase. Held,—that there had been no ratification of the

contract .

.

.

.

.

.

.

.

.

.

.

.

.

.

. . lb.

• A condition in a contract of lease, that the lessor shall not

open a shop within 24 hours' distance on horseback of the pro-

perty leased, is a valid condition, the breach of which would

support an action of damages. Brinhman vs. Lindt .

.

. . 60

A contract to carry goods " to any place within one mile"

must be construed as meaning the distance the carrier must

necessarily travel by road, and not a mile measured in a straight

line as the crow flies. Holland vs. Commissioner of Crown

Lands and Public Worhs . . . . . . . . . . . . 105

A contract in restraint of trade must be construed strictly.

Stephan Bros. vs. Laubscher . . . . . . . . . . 137

Oo-pboprietor.—See Joint Estate.

fAGK

Costs.—Where to a Circuit Court summons the defendant took an

exception which proved fatal to the hearing of the case, and

also pleaded over, costs only of exception were allowed, but not

costs of witnesses and of other expenses incurred by defendant

to defend the action had it gone to trial. On appeal the

Supreme Court refused to interfere with the Orcuit. Judge's

decision as to costs. Ravheriheimer vs. Campher .

.

. • 1°

A town attorney, who was required and had attended as a

witness at the hearing of a case in the Circuit Court, entitled

to witness' expenses in addition to costs payable to him as

attorney in the case. Shields and Van Roozen vs. Wehmeyr . . 44

Where judgment was given against defendant in the Court

below with costs, ordering him to pass transfer, and on appeal

by defendant the judgment was varied by adding a condition

that plaintiff was to give security over the property for a debt

due by him to plaintiff, although the judgment against defen-

dant for costs in the Court below was sustained, the defendant

was allowed his costs of appeal, as he had obtained a substantial

alteration of the judgment. Steenkamp vs. Krnger . . . . 45

An action was instituted against defendant as to the right of

possession of and to the forms of service to be used in a certain

mosque, which action, upon exceptions taken, terminated in

favour of defendant with costs. The present plaintiff, whowas no party to the former suit, now applied for leave to sue

defendant in forma pauperis in respect of issues similar to those

raised in the former action. The defendant objected that his

costs in the former proceedings had not been paid. Leave to

sue refused. David vs. Ahdol Rajieb . . . . . . . . 81

Where a jury returned a verdict in favour of defendants, and

a new trial was ordered and nothing said at the time about

costs, and on the second trial the jury found for plaintiff, the

Court granted judgment for plaintiff for the damages awarded,

with costs of the second trial, leaving each party to pay their

own costs of the first trial. Paterson vs. 8. Solomon & Co.

and McLougMin .

.

.

.

.

.

.

.

.

.

. . . . 130

CoTJNTEB-OLArM.—See Set-off.

Crime, Civil liability for.—See Civil Action.

Ckown Lands.—The Rules laid down by the Land Beacons Act for

the guidance of Commissioners in determining on disputed

beacons, apply to disputes between the Crown and a private

person, and are not limited only to disputes between private

persons. Latsky vs. Surveyor General .

.

.

.

. . . . 68

Prescription will run against the Crown with regard to rights

which could be alienated, but not as to inalienable rights . . /6.

OuBATOR.—Affidavits held sufficient evidence upon which to release

from curatorship a person who had previously been declared of

unsound mind. Re Borcherds . . . . . . . . . . 72A person who had given way to constant intemperance, andwho was squandering his property in liquor, and was ill-

PAQEtreating his wife and family, declared a prodigal, and his estate

placed under curatorship. Comhrink vs. Combrink andWilson .

.

.

.

.. .

.

. . .

.

.

.

. . 72

Defamation.—Application refused, after action commenced against

respondents, who were the printers and publishers of a news-

paper, for an order to compel them to make discovery andallow inspection of the original manuscript of a letter pubUshedby them containing defamatory statements. Vpington vs.

Murray and St. Leger . . . . . . . . . . . . 31

The proprietor of a newspaper held liable in an action of

damages for defamation, to which he had pleaded only the

general issue, for publishing in his paper a letter from a

correspondent containing the following paragraph referring

to plaintiff as a Member of ParUament who had been appointed

Chairman of Committees :" The behaviour of Mr. Walter,

which is noticed by us, only endangers his chance of being

returned at the next election, for since Mr. Molteno has

guaranteed him a salary in Parliament, he votes blindly on

every question (' om het bosch '), and is at present more a

servant of the House of Assembly than our representative."

Walter vs. Powrie . , .

.

.

.

.

.

. . . . . . 35

In an action of damages for Ubel, the jury found for the

defendants. A new trial was granted, on the grounds, first,

that the presiding Judge was not satisfied with the verdict

;

secondly, that the jury laid too much stress on the external

evidence of want of malice, and did not take into consideration

the internal evidence furnished by the libel itself ; and thirdly,

that the jury were not unanimous in their verdict. Paterson

vs. McLougJdin and Solomon cSs Co. .

.

. . . . . . 62

The applicant, having obtained a certificate from the Attorney-

General that he declined to prosecute, took out a criminal

summons calling upon the respondent to appear and abide by

the judgment of the Magistrate's Court upon a charge of libel.

On the day of hearing, applicant requested the Magistrate to

take a preparatory examination instead of trying the case. The

Magistrate refused, whereupon the applicant applied to the

Supreme Court for an order to compel the Magistrate to hold

such examination. Hdd,—that as the applicant had instituted

a summary proceeding, the Magistrate was justified in refusing

to change the trial into a preparatory examination. Le Sueur

vs. Oeary . . . . . . . . • 115

Libels of an aggravated nature are crimes by the law of the

Colony li-

Demand.—Plaintifi sued defendant in the Magistrate's Court for

damages for false imprisonment. At the hearing the defendant

excepted that no demand had been made before summons.

The Magistrate sustained the exception, and dismissed the case.

On appeal, exception overruled. Booi vs. Blake .

.

.. 113

Depaetitke from the Colony.—See Arrest.

PAGE

Discovery.—Application refused, after action commenced, for an

order to compel respondents, who were the printers and

publishers of a newspaper, to make discovery and allow

inspection of the original manuscript of a letter published by

them containing defamatory statements. Upington vs. Murray

and St. Leger .

.

.

.

.

.

• • • • • • • "^

DiSHONOTJB.—See Provisional Sentence. Promissory Note.

Distance.—The plaintiff entered into a contract with the defendant

to carry goods and produce from the railway station to any

place within one mile of the said station," at 2«. 6d. per ton,

and at an additional rate to all places beyond that distance.

Certain wool was carted by plaintiff to wool-wash establish-

ments within one mile of the station, if the distance was

measured in a straight line, but more than a mile by road.

JJeZd,-that the distance must be measured along the road

which the carrier must necessarily travel, and that plaintiff

was consequently entitled to the additional rate. Holland vs.

Commissioner of Crown Lands and Public Works .

.

.. 105

Divorce.—On granting a decree of divorce against a wife for

adultery, the defendant declared not entitled to her share in the

community, except so far as she may have contributed any

property towards the community. Dieperink vs. Dieperink . .92

Decree of divorce refused, where it was proved that the

plaintiff as well as the defendant had been guilty of adultery.

Wiezd vs. Wiei:d .

.

.

.

.

.

.

.

. • • • • • 92

Drains.—See Municipality.

Drunkenness.—See Prodigal.

Eastern Districts' Coitrt.—One of the judges of the Eastern

Districts' Court, sitting in Chambers, set aside an arrest, where-

upon the plaintiff appealed to the Supreme Court. Hdd,—That the appeal in the first instance was to the Eastern

Districts' Court. Perrins' Trustee vs. Bombail . . . . . . 50

Evidence.—In an action by Government against an official charged

with the custody of public monies, the burden of proving that a

deficiency exists lies upon the Government, whether the action

be founded upon a bond, or upon a charge of neglect, default, or

misappropriation. But if the deficiency be affirmatively proved

to exist, it will be for the defendant to explain or account for

the deficiency, and in the absence of such explanation the

defendant will be liable for the same. Colonial Secretary vs.

Breda's Curator and Others .

.

.

.

.

.

.

.

.

.

. . 1

An agreement of lease not properly stamped may be received

in evidence in an action on the lease on payment of such

penalty as the Court shall fix. Brinkman vs. Lindt .

.

. . 60Where medical evidence was produced to shew that a witness

was unable through illness to attend the trial, the affidavit of

such witness made ex parte for an interlocutory apphcation in

the suit, was not allowed to be used as evidence at the trial, the

opposite side objecting. Orundling vs. Executors of Stimme , . . 71

Evidence.—Affidavits held sufficient evidence upon which to release

from curatorship a person who had previously been found to

be of unsound mind. Be Borcherds . . . . . . . . 72A conviction for perjury quashed, where the materiality of the

evidence on which the perjury was assigned was not shewn.

Queen vs. Openty . . . . . . . . . . . . . . 85

In an action to set aside, under the 83rd section of the

Insolvent Ordinance, an ahenation of property made before

insolvency, it is for the plaintiff to prove that at the time of

the transaction challenged the insolvent's habiUties fairly

calculated exceeded his assets fairly valued, and then the onus

is upon the person upholding the transaction to show bona fides

and just and valuable consideration. McLeod's Tni.'stees vs.

Benjamin . . . . . . . . . . . . . . . . 152

Exceptions.—See Pleading.

Executor.—Husband and wife executed a mutual will, appointing

the survivor and the children the heirs of the first dying. Thewife died, and the widower married again. The husband andsecond wife made a will said to be inconsistent ivith the first

will. The husband afterwards died. The plaintiff wasappointed executor dative of the estate of the first wife. Held,

—that the plaintiff, as such executor, was bound to carry out

the provisions of the will of the first wife, in so far as it related

only to property disposed of by her, and to directions given byher ; and that his appointment did not impose the duty or

confer the right of carr5dng out the provisions of the husband's

first will, or of protecting those interested thereunder ; nor did

the appointment confer on the plaintiff the right to attack the

husband's second will on the grounds of undue influence and of

informality of execution. The persons who could avail them-

selves of such a right were the heirs, and they were not before

the Court. Meiring's Executor Dative vs. Meiring's Executors

Testamentary . . . . . . .

.

.

.

.

.

• 93

Where executors purchase the property of the estate under

their administration, the Court will make searching inqiiiry

into the circumstances, and it must be shewn that the purchase

was bond fide. Where an executor shewed that the property

had been submitted to public competition, and had been

purchased by him at auction, the Court would usually throw

on the other side the onus of shewing that the sale was not a

bond fide one. Nel vs. Louw . . .

.

.

.

• • 133

Semhle,—that a Circuit Court has jurisdiction to remove an

executor dative from office. Botes vs. Meere . . .

.

.. 139

Executory Contract.—See Contract.

Fine.—The Magistrate must give a person convicted of contravening

section 18, of Ordinance No. 25, 1847, in committing a breach

of the peace, the option of paying a fine. Queen vs. Meyer .. 19

Forfeiture.—See Divorce. Husband and Wife.

Former" Proceedings.—See Costs.

Gunpowder and Firearms.—An order signed by a Justice of the

Peace, that a dealer in arms, &c., is authorized to sell a pistol

to the person named therein, is not such a certificate as is

required by the 13th section of the Gunpowder and Firearms

Ordinance No. 2, 1853, in that it does not certify that the

person named is, to the knowledge of the Justice of the Peace,

a fit and proper person to obtain such permission. Queen vs.

Chabaud 149

HoRSE-HiEB.—The 8th section of Act No. 9, 1857, aiithorizing the

Magistrate to fix a reasonable horse-hire to be allowed to the

Messenger of the Court, is in effect repealed by the Tariff of

Fees fixed by the Rules of Court promulgated under the

authority of Act No. 21, 1876, section 7. Van Niekerh vs.

Barber .. ,. .. .. .. .. ., .. .. 126

Husband and Wife.—A bequest to a wife married in community,

of property as " her free and own property, without any deduc-

tions," is not a settlement upon the wife to her separate use, so

as upon the insolvency of the husband to deprive the trustee of

the property for the benefit of his creditors. The executors of

the testator are entitled, notwithstanding the words " without

any deductions," to set off against the trustee's claim to the

property, a debt due by the insolvent to the testator's estate.

Tesselaar's Trustee vs. Blanckenberg's . Executors and Mrs.

Tessdaar .

.

.

.

.

.

.

.

.

.

.

.

.

.

. . 54

The respondent, a married woman, obtained a wine and spirit

license in her own name. She afterwards gave appellant a

power to sell for her, which power she subsequently revoked,

but appellant notwithstanding continued to sell. Thereupon

respondent prosecuted appellant in the Resident Magistrate's

Court for a contravention of the Licensing Acts. An exception

that the respondent, under the 51st section of Act No. 20, 1856,

could not sue in the Magistrate's Court without being assisted

by her husband, overruled, the ordinary law, emancipating fromthe husband's curatorship a woman who was a public trader,

applying to this case, and the 51st section being applicable only

to civil cases. Mclntyre vs. Ooodiaon . . . . . . . . 83

On granting a decree of divorce against a wife for adultery,

the defendant declared not entitled to her share in the com-munity, except so far as she may have contributed any property

towards the community. Dieperink vs. Dieperink . . .-. 92Decree of divorce refused, where it was proved that the plaintiff

as well as the defendant had been guilty of adultery. Wiezel

vs. Wiezd . . . . . . .

.

.

.

.

.

.

.

. . 92

Inconsistent Pleas.—See Pleading.

Inheritance.—The purchaser of an inheritance is bound, besides

the payment of the purchase money, to save the seller harmlessfrom all claims and demands of the creditors of the estate. If

the purchaser wishes to avoid the payment of any particular

PAGEdebt, he must clearly prove that the seller at the time of the

sale intended to relieve him from the liabihty. Paterson vs.

Kemp's Executors . . .

.

. . . . . . . . . . 74

Inheritance.—The plaintiff was formerly in partnership with one K.

On the death of his partner plaintiff agreed with his heirs to

purchase the assets of the private and partnership estates for

£25,000. Among the private assets was a farm, on which

farm was a bond for £1000. The plaintiff alleged that it was

agreed that he was not to be liable for any of the private debts

of the deceased, but this condition was denied by the executors.

Hdd,—that the bond was a liability taken over by the plaintiff

by the terms of his purchase .

.

. . .

.

. . . . lb.

Insanity.—As a civil action may be brought against the heirs of a

defaulter, if instituted within a year after the defaulter's death,

u, fortiori an action lies against the curator of a defaulter whois still aHve, but insane. Colonial Secretary vs. Breda's

Curator and Others . . . . .

.

.

.

.

.

.

.

. . 1

—— Affidavits held sufficient evidence upon which to release from

cLiratorship a person who had previously been found to be of

unsound mind. He Borcherds .

.

. . . . . . . . 72

Insolvency.—Where one creditor had obtained judgment against a

debtor, and sued out execution thereon and attached property,

and another creditor subsequently obtained judgment, but on

suing out execution no goods remained to satisfy this judgment,

the Court decreed the sequestration of the debtor's estate.

Van der Byl ds Co. vs. 8mit . . . . .. . . . . . . 16

A bequest to a wife married in community, of property as

" her free and own property, without any deductions," is not a

settlement upon the wife to her separate use, so as upon the

insolvency of the husband to deprive the trustee of the property

for the benefit of his creditors. The executors of the testator

are entitled, notwithstanding the words " without any deduc-

tions," to set off against the trustee's claim to the property, a

debt due by the insolvent to the testator's estate. Tesselaar's

Trustee vs. Blanckenberg's Executors and Mrs. Tesselaar . . 54

In an action to set aside, under the 83rd section of the

Insolvent Ordinance, an alienation of property made before

insolvency, it is for the plaintiff to prove that at the time of the

transaction challenged the insolvent's liabilities fairly calculated

exceeded his assets fairly valued, and then the onus is upon the

person upholding the transaction to show bona fides and just

and valuable consideration. McLeod's Trustee vs. Benjamin. . 152

Insurance.—Plaintiffs agreed to import all goods through defen-

dants, to whom a commission was to be paid. Certain goods

shipped by defendants to plaintiffs were destroyed in transit.

The defendants recovered insurances on the goods exceeding in

amount the cost and charges on the goods. Held,—tha.t

defendants were acting as agents of plaintiffs, and therefore that

plaintiffs were entitled to such excess, as on the same grounds

PAGE

they would have been liable for any loss, had such resulted.

Hodgson & Go. vs. Porter d: Co 100

Joint Estate.—A bequest of property which the testator knows

belongs to the testator jointly with another, is presumed to be

a bequest only of the testator's share, except where the property

is the joint property of the testator and of his own residuary

heir, in which case the whole of the property is included in the

bequest. Van der Merwe vs. Executors of Van der Merwe . . 89

A co-owner of landed property is not entitled, without the

consent of his co-owners, to appropriate part of the soil for the

purpose of making bricks, whether such bricks are to be used

on the place or not. Oosthuysen vs. Mviler .

.

. . . . 129

JuElSDiOTios".

—

Semble,—that a Magistrate has jurisdiction to try a.

criminal charge of libel. Le Sueur vs. Oeary .. .. .. 115

Semble,—that a Circuit Court has jurisdiction to remove an

executor dative from office. Botes vs. Meere . . .

.

. . 139

The attachment of a vessel in port granted to found jurisdic-

tion in an action against the captain and owners upon a,

bottomry bond. Irvine <£ Co. vs. " Elise ".

.

. . . . 148

See Set-off.

Jury Tkial.—See New Trial. Defamation.

Land Beacons.—The rules laid down by the Land Beacons Act for

the guidance of Commissioners in determining on disputed

beacons, apply to disputes between the Crown and a private

person, and are not limited only to disputes between private

persons. Latshy vs. Surveyor-Oeneral .

.

.

.

.

.

. . 68

LiABiUTY FOK Mtsappeopriation OF FuNDS.—See Public Officer.

Civil Action.

LiBBi,.—See Defamation.

Lease.—A condition in the lease of farms, that the lessor shall not

open a shop within six hours' distance on horseback of the

property leased, is a valid condition, the breach of which wouldsupport an action of damages. Brinkman vs. Lin^t . . . . 60An agreement of lease not properly stamped, may be received

in evidence in an action for breach of one of the conditions of

the lease, on payment of such penalty as the Court shall fix.

The payment of such penalty, however, does not have the effect

of stamping the document .

.

.

.

.

.

.

.

.

.

. . lb.

Defendant and two others, joint owners of the farm SoldatenPost, leased portion thereof to plaintiffs, and contracted thatthey would not allow any business to be carried on "on anyimmoveable property belonging to us.'- The defendant wasalso part owner with third persons who were no parties to thecontract of another property called Patrysberg, on whichproperty plaintiffs complained that trading had been allowed.Held,—that Patrysberg was not one of the properties includedin the contract. Stephan Bros. vs. Loubscher .

.

.

.

. . ] 37

PAflE

Magistrate.—Where the defendant in a suit in the Magistrate's

Court filed an admitted liquid counter claim for a sum far

exceeding the amount sued for by the plaintiff, the Magistrate

held justified in treating such counter claim as a set-ofE to

plaintiff's claim, although the amount of the counter claim far

exceeded the limit of the Magistrate's jurisdiction. Smith vs.

Morum Bros. . . . . . . . . . . . . . . . . 20

Where a, defendant resided twenty-four miles from the place

of holding the Magistrate's Court, hdd,—that a summonshad been duly served where four days clear elapsed betweenthe day of service and the day of hearing. Meiring vs. Lieben-

berg . . . . . . . . . . . . . . . . . . 53

Plaintiff sued defendant in the Magistrate's Court for damages

for false imprisonment. At the hearing the defendant excepted

that no demand had been made before summons. The Magis-

trate sustained the exception, and dismissed the case. Onappeal, exception overruled. Booi vs. Blake . . . . . . 113

Senible,—that a Magistrate has jurisdiction to try a criminal

charge of libel. Le Sueur vs. Geary . . . . . . . . 115

The 8th section of Act No. 9, 1857, authorizing the Magistrate

to fix a reasonable horse-hire to be allowed to the Messenger of

the Court, is in effect repealed by the Tariff of Fees fixed by the

Rules of Court promulgated under the authority of Act No. 21,

1876, section 7. Van Niekerk vs. Barber . . .. .. .. 126

A summons was served at defendant's residence during his

absence. On the instructions of defendant's wife an agent

appeared for defendant, and appUed for a postponement of the

hearing, which, however, the Magistrate refused, and gave

judgment for plaintiff with costs. Held,—that such judgmentwas in effect a provisional one, and hable to be reopened.

Ross vs. Dramat . . . . . . . . . . . . . . 132

Magistbates' Cases Reviewed . . . . . . . . . . 19

Malicious Prosboution.—^Where a person has set the law in

motion, whether in a civil or a criminal case, if damages are

claimed from him for so doing, the declaration must aver malice,

and mahce must be proved. An allegation that defendant hadinstituted civil proceedings though he knew he had no legal

right so to do, without stating that he had been actuated bymalice, will not disclose cause of action. Beukes vs. Steyn . . 22

Mal-Praxis.—See Medical Practitioner.

Materiauty op Evidence.—See Perjury. Evidence.

Medical Pbactitionbb.—A medical practitioner, Uke any other

professional man, must bring to bear upon any case which he

has to attend a reasonable amount of skill and care, and where

he does not exercise such skill and care he would be Uable in

damages. Lee vs. Schonnberg 136

Member of Parliament.—The proprietor of a newspaper held

liable in an action of damages for defamation, to which he had

pleaded only the general issue, for publishing in his paper a

letter from a correspondent containing the following paragraph

referring to plaintiff as a Member of Parliament, who had been

appointed Chairman of Committees :" The behaviour of Mr.

Walter, which is noticed by us, only endangers his chance of

being returned at the next election, for since Mr. Molteno has

guaranteed him a salary in Parliament, he votes blindly on

every question (' om het bosch'), and is at present more a

servant of the House of Assembly than our representative."

Walter vs. Powrie .

.

.

.

. . .

.

. . .

.

. . 35

Messenger.—See Magistrate.

MiNOK.—An executory contract entered into on behalf of and to the

prejudice of a minor, requires express ratification by the minorafter attaining his majority to be enforceable against him.

Van der Byl & Co. vs. Solomon .

.

.

.

.

.

.

.

. . 25

Defendant's father bought at auction certain erven of land in

the minor's name at a price exceeding their value, but did not

pay the price or receive transfer. After attaining his majority

the minor offered to pay a small forfeit rather than complete

the purchase. Hdd,—that there had been no ratification of the

contract . . .

.

.

.

.

.

.

.

.

.

.

.

. . lb.

MiSAPPKOPBiATioN OF Ftjnds.—See Civil Action. Public Officer.

Mortgage Bond.—See Bond.

Municipality.—A person who had bought and received possession

of a, dwelUng-house within the Municipality, but who had not,

at the date of election, obtained transfer of the same, is not a" proprietor of immoveable property " qualified and eligible,

under section 7 of Ordinance No. 2, 1844, to be elected a

Municipal Commissioner. Van der Spuy vs. Maddison .

.

. . 97

The Cape Town MunicipaUty covered in a certain drain

passing plaintiff's premises. This drain on several occasions

proved to be of insufficient size at once to carry off all the rain

water. During a heavy rainfall the water overflowed the drain,

and flooded plaintiff's premises. The Municipality held hable

for the damage caused thereby. Manuel vs. Ca'pe Town TownCouncil . . . . . . . . . . . . .

.

. . 107

Qucere,—Whether the terms of the Cape Town Municipal

Act No. 1, 1861, impose an absolute duty on the TownCouncil to make and maintain sufficient drains within the

Municipality ; or whether the Town Council are Uable only for

negUgence where drains constructed by them are insufficient

or are not properly maintained . . .

.

.

.

. . . . 76.-

Mutual Will.—See Will. Executor.

Newspaper.—See Defamation.

New Trial.—In an action of damages for libel, the jury found for

the defendants. A new trial was granted on the grounds, first,

that the presiding Judge vas not satisfied with the verdict

;

secondly, that the jury laid too much stress on the external

evidence of want of malice, and did not take into consideration

the internal evidence furnished by the libel itself ; and thirdly,

that the jury were not unanimous in their verdict. Paterson

vs. McLoughlin and Solomon & Co. . . . . . . . . 62

New Teial.—Where a jury returned a verdict in favour of defendants,

and a new trial was ordered, and nothing said at the time about

costs, and on the second trial the jury found for plaintiff, the

Court granted judgment for plaintiff for the damages awarded,

with costs of the second trial, leaving each party to pay their

own costs of the first trial. Paterson vs. 8. Solomon S Co., andMcLougMin 130

Negligence.—The Cape Town MunicipaUty covered in a certain

drain passing plaintiffs premises. This drain on several

occasions proved to be of insufficient size at once to carry off all

the rain water. During a heavy rainfall the water overflowed

the drain, and flooded plaintiff's premises. The Municipality

held liable for the damage caused thereby. Manuel vs. Cape

Town Town Council . . .

.

.

.

.

.

. . .

.

. . 107

Quaere,—Whether the terms of the Cape Town Municipal Act

No. 1, 1861, impose an absolute duty on the Town Council

i to make and maintain sufficient drains within the Municipality;

or whether the Town Council are liable only for negUgenoe

where drains constructed by them are insufficient or are not

properly maintained .

.

.

.

.

.

.

.

.

.

. . 76;

NoN Compos Mentis.—See Insanity.

Non-negotiable Docttment.—See Promissory Note. Provisional

Sentence.

Notarial Protest.—See Promissory Note. Provisional Sentence.

Onus of Proof.—See Evidence.

Order in Chambers.—See Appeal.

Ordinance No. 6, 1843.—See Insolvency.-

— 2, 1844, § 7.—See Municipality.

25, 1847, § 18.—See Breach of the Peace.

8, 1852.—See Circuit Court. Prosecutor.

2, 1853.—See Gunpowder and Firearms.

Partnership.—Provisional sentence granted against both partners

of a firm, upon a bill of exchange drawn in the name of the firm

by one of the partners not for a firm debt, but discounted bond

fide by the plaintiffs. Standard Bank vs. Ooodchild and

BriUain 120

Pauper.—An action was instituted against defendant as to the right

of possession of and to the forms of service to be used in a

certain mosque, which action, upon exceptions taken, terminated

in favour of defendant with costs. The present plaintiff, whowas no party to the former suit, now apphed for leave to sue

defendant in forma 'pauperis in respect of issues similar to

those raised in the former action. The defendant objected that

his costs in the former proceedings had not been paid. Leave

to sue refused. David vs. Abdol Rajieb 81

Vol. VII. &

Pauper.—The Rule of Court enabling paupers to bring actions

pro Deo, is not intended to apply to a person who, though not

actually in possession of £10, yet has the means of obtaining

the money. Behrens vs. Berg . . . . . . . . . . 138

Penalty.—See Stamp Act. Lease.

Perjury.—A conviction for perjury quashed, where the materiality

of the evidence on which the perjury was assigned was not

shewn. Queen vs. Openty .

.

.

.

.

.

.

.

.

.

. . 85

PLEADiifG.—In an action for damages for instituting civil proceedings

a declaration alleging that the defendant knew he had no legal

right so to do, without also alleging that the defendant hadbeen actuated by malice in so doing, does not disclose good

cause of action. Beukes vs. Steyn . . . . . . . . . . 22

The plaintiff bought and obtained transfer from the defendant

of certain property. Defendant refusing to give possession,

plaintiff brought an action of ejectment and for damages. Thedefendant pleaded, first, the general issue. Secondly, that the

purchase and transfer had been effected through plaintiffs

fraud. And thirdly, that the circumstances under which the

sale was made amounted in law to la/sio enormia. Exception

to these pleas for inconsistency, and to the third plea for not

setting forth a, sufficient answer, sustained. De Jager vs.

De Jager 140

Praoticb.—See New Trial. Attorney.

Prescription.—Prescription will run against the Crown with regard

to rights which could be alienated, but not as to inalienable

rights. Latsky vs. Surveyor Oeneral .

.

.

.

.

.

. . 68

Principal and Agent.—A private sale of land to a person as agent

for an undisclosed principal, is null and void. Steenkamp vs.

Kruger .

.

.

.

.

.

. • . • • • • • 45

Plaintiffs agreed to import all goods through defendants, to

whom a commission was to be paid. Certain goods shipped by

defendants to plaintiffs were destroyed in transit. The defen-

dants recovered insurances on the goods exceeding in amount

the cost and charges on the goods. Hdd,—that defendants

i\-ere acting as agents of plaintiffs, and therefore that plaintiffs

were entitled to such excess, as on the same grounds they

would have been liable for any loss, had such resulted.

Hodgson & Co. vs. Porter & Co. . . . . . . . . . . 100

Prodigal.—A person who had given way to constant intemperance,

and who was squandering his property in liquor, and was ill-

treating his wife and family, declared a prodigal, and his estate

placed under curatorship. Comhrink vs. Comhrink and

Wilson 72

Promissory Note.—Though a promissory note in favour only of

the payee, and not payable to order, may be transferred byspecial cession, yet the cessionary cannot stand in a better

position towards the debtor than the cedent would have done.

Enslin vs. Haupt 68

PAGEPeomissoby Note.—Provisional sentence refused against the

endorser of a promissory note, the only proof of dishonour

being by affidavit, and it appearing that there was a resident

Notary Public who might have been employed to protest the

note. Stdlenbosch Bank vs. Mader . . . . . . . . 114

Peosecutor.—In the absence of the letter of the Attorney General,

appointing a Barrister to prosecute at a sitting of the Circuit

Court, the Resident Magistrate of the district, under the 14th

section of Ordinance No. 8, 1852, gave a written authority to a

Barrister to appear in Court and to conduct the prosecutions.

An objection taken by a prisoner to such appointment over-

ruled. Queen vs. Van Zyl . . . . . . . . . . . . 87

PeoVISIONAL Judgment.—A summons was served at defendant's

residence during his absence. On the instructions of defendant's

wife an agent appeared for defendant and applied for a post-

ponement of the hearing, which, however, the Magistrate

refused, and gave judgment for plaintiff with costs. Hdd,—that such judgment was in effect a provisional one, and liable

to be reopened. Ross vs. Dramat .

.

.

.

.

.

.

.

. . 132

Peovisional Sentence—Granted,—On a summons on a, mortgage



against the debtor. Lippert & Co. vs. Yan Rensburg .. . 42

Granted,—Though a promissory note in favour only of the

payee, and not payable to order, may be transferred by special

cession, yet the cessionary cannot stand in a better position

towards the debtor than the cedent would have done. Enslin

vs. Haupt . . .

.

. . .

.

.

.

.

.

.

.

. . 58

Refused,—Against the endorser of a promissory note, the only

proof of dishonour being by aifidavit, and it appearing that there

was a resident Notary Public who might have been employed

to protest the note. Stdlenbosch Bank vs. Mader . . . . 114

Granted,—Against both partners of a firm, upon a bill of

exchange drawn in the name of the firm by one of the partners

not for a firm debt, but discounted bona fide by the plaintiffs.

Standard Bank YS. Goodchild and Brittain . . .. .. 120

Public Officer.—It is the duty of a public officer to exercise due

vigilance and effective supervision over all subordinates in his

department ; and he cannot excuse his own carelessness on the

ground that the Government and himself had unbounded

confidenoe in his subordinates ; nor can he be heard to say that

more duties than he could reasonably be expected to perform

were imposed upon him. Colonial Secretary vs. Breda^s

Curator and Others . . . . . . . . .

.

.

.

. . 1

In an action by Government against an official charged with

the custody of public monies, the burden of proving that a

deficiency exists lies upon the Government, whether the action

be founded upon a bond, or upon a charge of neglect, default,

or misappropriation. But, if the deficiency be affirmatively

proved to exist, it will be for the defendant to explain or

account for the deficiency, and in the absence of such explana-

tion the defendant will be Hable for the same . . .

.

. . 1

Public Officbe.—Semble,—After an official had vacated office for

some years, it is probable he would not be bound to frame andrender an account, supported by vouchers, of the complicated

pecuniary transactions of his office during the time he hadcharge of it .

.

.

.

.

.

.

.

.

.

.

.

.

.

. . lb,

The fact that misappropriation of funds renders a public

officer criminally hable, does not bar the Crown of its civil

remedy against such officer .

.

. . .

.

.

.

. . lb;

As a civil action may be brought against the heirs of a

defaulter, if instituted within a year after the defaulter's death,

a fortiori an action lies against the curator of a defaulter whois still aMve, but insane . . . . . . . . . . . . lb:

Ptjblic Trader.—The respondent, a married woman, obtained a

wine and spirit license in her own name. She afterwards gave

appellant a power to sell for her, which power she subsequently

revoked, but appellant notwithstanding continued to sell.

Thereupon respondent prosecuted appellant in the Resident

Magistrate's Court for a contravention of the Licensing Acts.

An exception that the respondent under the 51st section of Act

No. 20, 1856, could not sue in the Magistrate's Court without

being assisted by her husband; overruled the ordinary law,

emancipating from the husband's ouratorship a woman who was

a pubUc trader, applying to this case, and the 51st section

being applicable only to civil cases. Mclniyre vs. Ooodison . . 83

PtTRCHASB AND Sale.—A Sale of land to a person as agent for an

undisclosed principal is null and void. Steenkamp vs. Kruger 45

The purchaser of an inheritance is bound, besides the pay-

ment of the purchase money, to save the seller harmless from

all claims and demands of the creditors of the estate. If the

purchaser wishes to avoid the payment of any particular debt,

he. must clearly prove that the seller at the time of the sale

intended to relieve him from the Habihty. Paterson vs.

Kemp's Executors .

.

.

.

.

.

.

.

.

.

.

.

. . 74

The plaintiff was formerly in partnership with one K. On the

death of his partner plaintiff agreed with his heirs to purchase

the assets of the private and partnership estates for £25,000.

Among the private assets was a farm, on which farm was a

bond for £1000. The plaintiff alleged that it was agreed that

he was not to be liable for any of the private debts of the

deceased, but this condition was denied by the executors.-

Held,—that the bond was a liability taken over by the plaintiff

by the terms of his purchase .

.

.

.

.

.

.

.

. . lb:

Qtjaufication" of Commissioner.—See Municipahty.

Railways.—The respondent, a person authorised under the Railways

Act to take materials for the construction of a railway, inter-

dicted, pending an action to try rights, from using for domestic

purposes the water of a well near to applicant's homestead, andalso from cutting wood on the farm elsewhere than along thetrack of the railway line ; but not interdicted from taking waterfound elsewhere on applicant's land, it not appearing that theappUcant would suffer any immediate injury from such use.

Du Plessis vs. Willcinson . . .. .

.

.

.

.

.

. . 28Ratipication of Contbact.—See Minor.

Resident Magisteatb.—See Magistrate.

Restraint oe Trade.—A condition in the lease of farms, that the

lessor shall not open a shop within six hours' distance on horse-

back of the property leased, is a valid condition, the breach of

which would support an action of damages. Brinkman vs.

Lindt . . .

.

.

.

.

.

.

.

.

.

.

.

.

.

. . 60A contract in restraint of trade must be construed strictly.

Stephan Bros. vs. Lavischer . . . . .

.

.

.

. . 137

Defendant and two others, joint owners of the farm Soldaten

Post, leased portion thereof to the plaintiffs, and contracted that

they would not allow any business to be carried on "on anyimmoveable property belonging to us.'- The defendant wasalso part owner with third persons, who were no parties to the

contract, of another property called Patrysberg, on whichproperty plaintiffs complained that trading had been allowed.

Held,—that Patrysberg was not one of the properties included

in the contract .

.

.

.

.

.

.

.

.

.

.

.

. . lb;

Roads.—See Railways.

Rule oe Court No. 8.—See Arrest.

No. 125.—See Pauper.

Rule op Resident Magistrate's Court No. 10.—See Magistrate.

Summons.

Sale.—See Purchase and Sale.

Sequestration.—See Insolvency.

Service.—See Summons.Set-off.—Where the defendant in a suit in the Magistrate's Court

filed an admitted hquid counter-claim for a sum far exceeding

the amount sued for by the plaintiff, the Magistrate held

justified in treating such counter-claim as a set-off to plaintiff's

claim, although the amount of the counter-claim exceeded the

limit of the Magistrate's jurisdiction. Smith vs. Morum Bros. 20

The executors of a testator held entitled to set off against a

bequest to a wife married in community of property as " her

free and own property, without any deductions," a debt due bythe husband to the testator's estate. Tessdaar's Tncstees vs.

Blanckenberg's Executors and Mrs. Tesselaar . . . . . . 54

Slander.—See Defamation.

Stamp Act.—An agreement of lease, not properly stamped, may be

received in evidence in an action for breach of one of the con-

ditions of the lease, on payment of such penalty as the Court

shall fix. The payment of such penalty, however, does not have

the effect of stamping the document. Brinkman vs. Lindt . . 60

PAGESummons.—Where a defendant resided twenty-four miles from the

place of holding the Magistrate's Court. HM,—that a sum-mons had been duly served where four days clear elapsed

between the day of service and the day of hearing. Meiring vs.

Liebenberg . . . . . . . . .

.

.

.

.

.

. . 53Surety.—Provisional sentence granted on a summons on a mortgage



against the debtor. Lippeii <fc Co. vs. Van Rensburg . . . . 42SuppoETiNa Account.—See Principal and Agent. Insurance.SuRvivoE.—See WiU. Executor.

Theft.—See Qvil Action.

Trader.—See Public Trader.

Trial by Jury.—See New Trial.

Trust Property.—Where executors or administrators purchase the

property of the estate under their administration, the Courtwill make searching enquiry into the circumstances, and it

must be shewn that the purchase was bond fide. Nel vs. Louw 133

Where an executor shewed that the estate property had been

submitted to pubUo competition, and had been purchased byhim at auction, the Court would usually throw on the other

side the onus of shewing that the sale was not a bona fide one . . lb.

Trustee.—The Court refused to order the transfer of property

belonging to a voluntary association out of the name of a

trustee who had left the Colony, without the knowledge or

consent of such trustee ; but where such trustee had apparently

intended to abandon office, the Court, under the provisions of

Act No. 3, 1873, appointed another trustee in his place. ReFree Wrights Association . . . . . . . . . . . . 57

Uifdisclosed Principal.—See Principal and Agent.

Voluntary Association.—The Court refused to order the transfer

of property belonging to a voluntary association out of the

name of a trustee who had left the Colony, without the

knowledge or consent of such trustee ; but, where such trustee

had apparently intended to abandon office, the Court, under the

provisions of Act No. 3, 1873, appointed another trustee in his

place. Re Free Wrights Association . . . . . . . . 57

Water-rights.—Damages and an interdict granted against de-

fendants, brewers, upper riparian proprietors, who had for manyyears allowed the polluted water from their brewery to flow

into the stream, but who latterly, in consequence of a large

increase in their business, had increased the amount of pollution

flowing into the stream, to the injury of the plaintiff, a brewer

situated on the stream below defendants. Dreyer vs. Cloete . . 142

WirE.—See Husband and Wife.

Will.—A will executed before the passing of the " Attesting

Witnesses Act, 1876," set aside, on the ground that one of the

attesting witnesses was one of the instituted heirs. Joubert vs.

Executor of Bussouw . . . . . . . . . . . . 21

The brother of the testator held to be a competent witness

to an underhand will. Van Niekerk vs. Baubenheimer'

s

Executrix . . . . .

.

.

.

.

.

.

.

.

.

. . 51

A bequest of property which the testator knows belongs to the

testator jointly with another is presumed to be a bequest only

of the testator's share, except where the property is the joint

property of the testator and of his own residuary heir, in which

case the whole of the property is included in the bequest. Vander Merwe vs. Executors of Van der Merwe .

.

.

.

. . 89

Husband and wife executed a mutual will, appointing the

survivor and the children the heirs of the first dying. Thewife died, and the widower married again. The husband andsecond wife made a will said to be inconsistent with the

first will. The husband afterwards died. The plaintiff wasappointed executor dative of the estate of the first wife.

Held,—that the plaintiff, as such executor, was bound to carry

out the provisions of the will of the first wife, in so far as it

related only to property disposed of by her, and to directions

given by her ; and that his appointment did not impose the

duty or confer the right of carrjdng out the provisions of the

husband's first will, or of protecting those interested there-

under ; nor did the appointment confer on the plaintiff the

right to attack the husband's second will on the grounds of

undue influence and of informality of execution. The persons

who could avail themselves of such a right were the heirs, andthey were not before the Court. Meiring's Executor Dative vs.

Meiring's Executor Testamentary .. .. .. .. .. 93

Witness.—A will executed before the passing of the " Attesting

Witnesses Act, 1876," set aside, on the ground that one of the

attesting witnesses was one of the instituted heirs. Joubert vs.

Executor of Bussouw . . .

.

. . .

.

. . . . 21


witness at the hearing of a case in the Circuit Court, entitled

to witness's expenses in addition to costs payable to him as

attorney in the case. Shields and Van Booyen vs. Wehmeyr . . 44

The brother of the testator held to be a competent witness

to an underhand will. Van Niekerk vs. Baubenheimer's

Executrix . . . . . . . . . . . . . . . . 51

Where medical evidence was produced to show that a witness

was unable through illness to attend the trial, the affidavit of

such witness, made ex parte for an interlocutory application in

the suit, was not allowed to be used as evidence at the trial,

the opposite side objecting. Orundling vs. Executors of

Stimme . . . . . . . . . . . . .

.

. . 71

Wood and Water.—See Railway.

CASESDECIDED

IN THE SUPEEME COUET,

1877.

VOL. VII. PART I.

The Colonial Secretary vs. Breda's Curator.The Colonial Secretary vs. Southby and Others.

The Colonial Secretary vs. Davidson.

Public officer, duty of.—-Liability for negligence.—-Deficiency

in accounts.—-Civil and criminal liability.^Insanity.

In an action by Government against an official charged with

the custody of puhlic monies, the burden of proving that a

deficiency exists lies upon the Government, whether the

action be founded upon a bond, or upon a charge of neglect,

default, or misappropriation. But if the deficiency be

affirmatively proved to exist, it will be for the defendant

to explain or account for the deficiency, and in the absence

of svAih explanation the defendant will be liable for the

sarne.

It is the duty of a public officer to exercise due vigilance and

effective supervision over all subordinates in his depart-

rmnt ; and he cannot excuse his own carelessness on the

ground that the Government and himself had unbounded

confidence in his subordinates ; nor can he be heard to say

Vol. VII.—Pabt I. B

that more duties than he could reasonably he exjieded to

'perform were imposed upon him.

The fact that misappropriation of funds renders a public

officer criminally liable, does nat bar the Crown of its civil

remedy against such officer.

As a civil action may be brought against the heirs of a defaulter,

if instituted within a' year after the defaulter's death,

a fortiori an action lies against the curator of a defaulter

who is still alive, but insane.

Semble,—After an official had vacated office for some years, it

is probable he would not be bound to frame and render anaccount, supported by vouchers, of the complicated pecuniary

transactions of his office during the time he had charge

of it.

^dI?' 14

Three actions were instituted by the Colonial Secretary,

.. 15- suing on behalf of the Queen in her Government of the

'^^^^^- Colony, first, against Abraham Denyssen in his capacity as

Jan. 12. the curator dative of the person and estate of Arend Josias

The Colonial van Breda, a lunatic ; secondly, against the HonourableSecretary j;s.

i i • nBreda'sCuiator. Jttichard bouthcy and two sureties ; and thirdly, against the

Secretary vs. Honourable James C. Davidson, to estabhsh the UabUity of

others. the defendants for certain alleged deficiencies in the Colonial

Secretory vs. Treasury. The evidence taken in the first suit was admitted

as evidence in the others, and aU the cases were dealt with

by the Court in one judgment.

In the first case plaintiff's declaration set forth that the

said Breda was, from the 22nd November, 1861, to the

16th January, 1862, and from the 4th April to the

21st December, 1864, the officer or clerk in charge of

the Treasury of the Colony, duly appointed as such, andthat in his said capacity it was his duty to keep or cause

to be kept proper books and accounts of all monies received

and paid by him and those under him, to render or cause

to be rendered proper accounts, and upon each termination

of his said ofiice to pay over to Government any balance

which might be due ; that the said Breda, not regarding his

duty in that behalf, did not keep or cause to be kept proper

books or accounts, nor did he render proper accounts, nor

Davidson.

did he pay the balance due by him, but on the contrary,

the books and accounts kept were so bad and improper that

the true state of the accounts of the Colony could not be

ascertained, and that the accounts rendered were improper

and unreliable, to the loss and damage of the Governmentin the sum of £6399 19s. 5d., and that this sum remained dueby the said Breda at the termination of his office, and hadnot been paid over by him ; wherefore the plaintiff prayed

judgment for £6399 19s. 5d. with interest, or otherwise that

the defendant be ordered to render true and proper accounts,

and upon debate of the same to pay the amount found to bedue. The defendant pleaded the general issue.

The pleadings in the second case against the Honourable

Richard Southey and his sureties will be found in the

report of the argument on the exception taken to defendant's

plea of prescription, vide Colonial Government vs. Southey andOthers, 6 Buch. S. C. Rep. (1876), p. 140. The only plea

on record at the trial was the general issue.

In the third case, in consequence of the exceptions taken

and sustained to plaintiff's declaration (The Colonial Secretary

vs. Davidson, 6 Buch. S. C. Rep. (1876), p. 131), new plead-

ings were filed. The amended declaration set forth that

on or about the 21st December, 1864, the defendant wasduly appointed to the office of Treasurer and Accountant-

General of the Colony at a salary of £1000 per annum, the

duties of the office consisting among other things of the

receiving and paying of money for Government, and the

keeping or causing to be kept proper and correct books andaccounts of all monies so received and paid ; and the de-

fendant entered upon the said office, and undertook duly,

faithfully, and diligently to perform the duties thereof, andespecially as to the keeping of proper books and accounts,

in order that amongst other things the true state of the

Treasurer's accounts should at all times be able to be as-

certained ; and the defendant continued to hold the said

office and to draw the said salary until the 28th November,

1872;

yet the defendant, not regarding his promise andduty in that behalf, did not keep or cause to be kept proper

books or accounts, but on the contrary kept such bad and

improper books and accounts that the true state of the

Treasurer's accounts could not be ascertained, to the loss

of the Government in the sum of £43,256 lis., for which

B 2

1876.Dec. 14.

„ 15.

„ 16.

„ 18.

1877.Jar. 12.

The ColonialSecretary vs.

Breda'sCurator.The ColonialSecretary vs.

Southey andOthers.


Davidson.

1876.Dec. 14.

„ 15.

„ 16.

,. 18.1877. )

Jan. 12.


Breda'sCurator,The ColonialSecretary vs.Southey and

Others.The ColonialSecretary vs.Davidson.

sum plaintiff prayed judgment. In a second count theplaintiff prayed for the payment of the said sum as damages,or otherwise that the defendant be ordered to render trueand proper accounts, and upon debate of the same to paywhatsoever should be found to be due. In a third countplaintiff alleged that defendant had received the said sumof £43,256 lis., but had failed to pay the same over to theGovernment. The plea was the general issue to the wholedeclaration.

Considerable evidence was led to show the amount of

deficiency in the Treasury, and the period when variousdiscrepancies in the accounts appeared, and also of altera-

tions made in the Treasury books during Breda's tenure of

ofl&ce, apparently with the object of conceaHng a deficiency.

The material facts proved will be found fully set forth in

the judgments given below.

Jacobs, A.-G. (with him Buchanan), appeared for the

plaintiff ; and Cole (with him Upington) for the defendantsin aU the cases.

Cur. adv. vult.

Posted (January 12),

—

De Villiees, C.J., in giving judgment, said : The facts

of these three cases are so intimately connected with each

other, that it will be convenient, in giving judgment, to

consider them together. They all arise out of a deficiency

which is alleged by the plaintiff to have from time to time

accrued in the Treasury Chest during the respective

periods when the three principal defendants had the

charge of and control over the Treasury Department. Mr.

Van Breda, who held the permanent and subordinate office

of Teller, had the temporary charge from the 22nd No-vember, 1861, to the 16th January, 1862, at which latter

date Mr. Southey was appointed to the office of Treasurer

and Accountant-General of the Colony. He held this office

until the 21st July, 1864, but during part of the inter-

vening period, namely, from the 4th April, 1864, to the 21st

July, 1864, he was unable, owing to his absence from Cape

Town on Parliamentary business, to have the personal charge

of the Treasury, and Van Breda was again appointed to take

the temporary charge. Upon Mr. Southey's appointment to

the office of Colonial Secretary in July, 1864, Mr. VanBreda continued to act as the Officer in Charge of the

Treasury until the appointment of Mr. Davidson as Trea-

surer and Accountant-General on the 21st December, 1864.

Davidson held the office until the 28th November, 1872,

but during part of the intervening period, namely, in the

year 1866, he was absent on leave for seven months, andVan Breda for the third time acted as the Officer in Charge

of the Treasury. The action against the defendant VanBreda is founded upon a deficiency amounting to £4400,

which is alleged to have accrued during the period when he

first held the acting appointment ; and a further deficiency

of £1999 19s. 5d., which .is alleged to have accrued during

the period when he had charge of the Treasury for the

second time. Singularly enough, the plaintiff overlooked

the fact that Van Breda acted for the third time in 1866,

and accordingly there is no claim against him for the

deficiency which accrued during this period. The action

against the defendant Southey is founded on a bond madein the ordinary form by himself as principal in the sum of

£6000, and by his co-defendants as sureties in the sum of

£4000, for the due performance and execution of all the

duties of the office of Treasurer and Accountant-General.

The following are some of the duties enumerated in the

bond : that he shall and do well and truly pay and apply all

such sums of money, biUs, notes and securities for money as

shall from time to time come to his hands as such Treasurer,

or with which he shall become justly chargeable as such

Treasurer, according to such directions as he may have

received or shall receive from the Lords Commissioners of

Her Majesty's Treasury or the Governor of the Cape of

Good Hope, or such other person as shall be duly authorised

to give orders or directions in that behalf ; that he shall not

in any wise take to his own use, misapply, lend or embezzle,

make away with, neglect to account for, or by his wilful

neglect lose or hazard any such sum or sums of money as

aforesaid, or any part thereof ; that he shall at the expiration

of his said office pay to the person duly authorised to

receive the same the balance (if any) remaining in his

hands and due from him ; and that he shall at all times

1876.Dec. 1^.

„ IE.

„ 16.

„ 18.1877.

Jan. 12.


Breda'sCxurator,The ColonialSecretary vs.

Southey andOthers.

The ColonialSecretary vst

Davidson.

dW.u. ^^"^^S his continuance in the said office act and conduct"

le.hi'^self with fideUty, integrity, and punctuality, in and con-

j'^„i8. cerning the matters and things which shall be entrusted toJan^2. him as Treasurer and Accountant-General. The main

SeMeto™i?charge against the defendant Southey is that in breach of

^The^c&i^''*^® bond he neglected at the expiration of his office to

Secretary »«. account for part of the monies received by him during hisSouthey and ,„„,., •' °

•v^°*'^T-- ,*®^™^ °f office, VIZ., the sum of £5000, which is alleged to

The Colonial t ,t , r. . i . iSecretary «>«. DO the deliciency which existed in July, 1864. The actionDavidson.

j_ l^ -, e -, -r^ . -,

against the defendant Davidson is founded on a deficiency

amounting to £43,256 lis., which is said to have occurredduring his term of office, including the period when VanBreda acted for him. In addition to the claims for specific

sums in the actions against Van Breda and Davidson, the

declaration in each of these actions contains a claim for

a true and proper account, supported by vouchers, of all

monies received and paid by Van Breda and Davidsonduring their respective terms of office. I confess that, if

this claim had been pressed on behalf of the plaintiff, I

should have felt considerable difficulty in holding that these

defendants are bound, after the lapse of so long a time, to

frame and render an account, supported by vouchers, of

the compUcated pecuniary transactions of the Treasury

during the time they had charge of it. The claim may,

however, be taken to have been tacitly abandoned by the

Attorney-General on behalf of the Crown, for during the

whole of his able argument hs had not a word to say in

support of it. Dismissing this point then from our con-

sideration, the broad question which remains wUl be found

to be the same in each of the three cases. That question

is, whether the defendant has failed to account for any

part of the monies received by him on behalf of the Crown

during his term of office ? The duties which I have

already mentioned as enumerated in the bond passed by

the defendant Southey are clearly duties appertaining to

the office of Treasurer and Accountant-General, and would

be equally incumbent on the holder of the office whether

he had given a bond to the Government or not. If any

of the defendants has been guilty of a breach of duty

he is liable to the Government for any loss which such

breach of duty may have occasioned, but the breach of

duty must be clearly proved and the loss must be clearly

established. The main breach of duty charged against the

defendants is that they neglected at the expiration of their

respective terms of office to account for all monies received

by them in their official capacity, and the loss to the

Government is estimated by the amount of the deficiency

which is alleged to have accrued during their respective

terms of office. The Attorney-General argued that evenif he should fail in proving that the Government has

sustained any actual loss he would at all events be entitled

to nominal damages upon proof of the breach of duty. Butunless an actual deficiency is clearly established it is im-

possible for the Crown to prove that there has been a

failure to account for monies received. The issue is

therefore really narrowed to the simple question whetheror not it has been clearly proved that a deficiency did

accrue in the Treasury Chest during the defendants' re-

spective terms of office. The burthen of proving the affir-

mative lies upon the plaintiff, whether the action be foundedupon a bond, or upon a charge of neglect, default, or mis-

appropriation. Before, however, proceeding to the con-

sideration of this question, it will be convenient to makea few general remarks upon the three cases. In one

important respect the case of Van Breda differs from that

of the two other defendants. During the whole of the

period over which the three actions extend, and for sometime previously, he was the person who had the actual

custody of the Treasury funds, who kept the rough books in

which the receipts and payments were entered, and to whomthe Executive Government as weU as its subordinate officers

at all times looked for information upon matters connected

with the Treasury. From the highest Government official

down to the lowest, every one had unlimited confidence in

his integrity and abUity. No special blame therefore

attaches to the defendants, Southey and Davidson, for

sharing in this general belief. But however great his in-

tegrity, however implicit the confidence reposed in VanBreda by the Executive Government may have been, it wasthe bounden duty of the Officer who from time to time held

the office of Treasurer and Accountant-General to exercise

due vigilance and effective supervision over all subordinates

in the office, including Van Breda himself. Such an Officer

cannot, in a Court of Justice, be heard to excuse his own

1876.Dec. 14.

„ 15.

» 16.

„ 18.1877.

Jan. 12.



Southey andOthers.


Davidson.

1876.Dec. 14.

„ 16.

„ 16.

„ 18.1877.

Jan. 12.


Breda'sCuratorThe ColonialSecretary vs.Southey and

Others.The ColonialSecretary vs.

Davidson.

carelessness on the ground that he had unbounded con-fidence in the chief clerk of his department. Nor canhe be heard to say that more duties than he could reason-ably be expected to perform were imposed upon him. Theacceptance of high office involves corresponding respon-sibUities and obligations, and the acceptance of everyadditional duty implies a corresponding promise faithfully todischarge that duty. I confess I was somewhat astonishedat the admissions which one of the defendants (Davidson)candidly made as to the view he took of his duties. " I donot remember," he says, " that I took any particular steps tomake myself acquainted with the duties of my office. I didnot consider that I had anything to do with the cash. ... I

did not inquire whether there were any instructions as to

the duties of the Treasurer. I never ascertained how muchthere was in the chest. ... I did not consider it my dutyto sign the transcripts. ... I knew that there weretemporary deposits kept in the office and I imagined

that accounts were kept of them. I left it to the AuditOffice to check the accounts of Van Breda and of the

Master of the Supreme Court." If, under such a system

of management, money was lost out of the Treasury or

remained unaccounted for, it would be no answer for

the Treasurer to say that he never handled the moneyhimself, that he did not keep the books himself, that

he had not the custody of the keys of the chest, that he

as weU as the Government trusted the Teller, and that

the Auditor-General neglected his duties in not keeping a

strict audit of the accounts of the Treasury. The neglect

of their duty by other officers does not justify the Treasurer

in neglecting his. Every officer is individually answerable

for the manner in which he administers the duties devolving

upon him. And where a public officer has subordinates

under him, he is likewise responsible to the Government

for their neglect or misconduct, if he is guilty of negligence

in not exercising a reasonable superintendence and vigilance

over their acts and doings. There is no evidence before the

Court as to the degree of vigilance exercised by the de-

fendant Southey ; but in regard to Davidson, his ownevidence proves the absence of such a degree of vigilance

and superintendence as might reasonably have been ex-

pected from an officer of his experience and position. It

has, indeed, been suggested on his behalf that the Govern-ment of the day never expected, or desired, that he shoiild

be more than a nominal head of this department ; but it

would require stronger evidence than that which is before

the Court to convince me that the Government of the daycould have been guilty of so gross a dereliction of duty.

Fortunately, however, it is not necessary, for the purposes

of these cases, to measure out the degree of blame that

attaches to the Government, to the Audit Oifice, and to

the persons who, from time to time, held the office of

Treasurer and Accountant-General. The main question in

each case, as I have already observed, is, whether or not a

deficiency has been proved. If this question be answeredin the affirmative, it would lie upon the defendant to explain

or account for the deficiency, and in the absence of such anexplanation the Court will be bound to decide in favour of

the Crown. If the question be answered in the negative,

the Court will not be justified in deciding against the de-

fendant. The accounts in the Treasury Department fall

under two heads, viz., the General Revenue Accounts, andthe Temporary Deposit Accounts. There is no allegation

of any deficiency in the General Revenue Accounts, nor is

it easy to see how such a deficiency could have arisen, or,

if it did arise, how it could have escaped immediate de-

tection ; for the books relating to these accounts were fairly

kept by a proper accountant, and the accounts themselves

were regularly audited by the Auditor-General. As to the

Temporary Deposit Accounts I have no hesitation in saying

that the state in which they were found by the Treasury

Commission is a disgrace to the department. No proper

record of authorised advances was kept, nor was there anybook from which a trustworthy account of the temporary

deposit transactions can be framed. Books, called draft

books and rough cash book, have been produced, but they

really contain nothing more than rough memoranda madeby Breda of transactions relating to drafts received as assets

and of cash received and paid daily ; and these memorandawere never checked by any other officer of the department,

nor were they ever transferred into any other proper book

such as would be required in every mercantile concern.

None of the accounts relating to the temporary deposits

were sent to the Auditor-General for audit, nor did that

1876.Dec. 14.

„ 16.

„ 16.

„ 18.

1877.Jan. 12.


Breda*sCurator.The ColonialSecretary vs.

Southey andOthers.


Davidson.

10

1876.IDec. 14.

» 15.

„ 16.

„ 18.

1877.Jan. 12.

The ColonialSecretary vs,

Breda'sCuratorThe ColonialSecretary vs.

Southey andOthers.

The ColonialSecretary vs.Davidson.

officer ever require them to be sent. It is only fair to addthat the instructions from the Lords Commissioners of the

Treasury seem to relieve the Treasurer from the obligation

of having the temporary deposit accounts audited. At one

time weekly statements were sent to the Colonial Secretary,

containing fuU information as to the receipts and paymentsfor the past week, together with the balance in hand at the

time, and specifying the various items of temporary de-

posits under the different heads to which they relate, butthis wholesome practice was suddenly discontinued in the

year 1867, without remonstrance from the Colonial

Office. Examinations of the chest were from time to time

held by officers of the Government specially appointed for

the purpose, but they did not examine the books relating

to the temporary deposits, and contented themselves with

counting the specie and bank notes which Van Breda

produced, and stated to be temporarily deposited in the hands

of the Treasurer. I cast no blame on the gentlemen whoconducted these examinations, because I am ignorant as to

the instructions under which they acted ; but I am bound

to say that the process was a mere farce, and begot more

mischief than good by promoting a false sense of security

in the minds of those whose duty it was to watch and pro-

tect the interests of the pubUc. In one respect some of the

certificates of the examiners have been of service in the

present investigation, and that is, by shewing what, accord-

ing to Van Breda's own statement, were the amounts of

temporary deposits in the hands of the Treasurer at the

date of the different examinations. By comparing these

amounts with the correct balances which ought to have

been in the Treasury the plaintiff has tried to fix the

amount of deficiency which from time to time accrued.

But the difficulty is to ascertain what the correct beilances

were. Great credit is due to the witnesses, Todd and

Hoffmann, for the care and trouble they have bestowed on

the matter ; but after all their labours they were bound to

admit that they could only arrive at an approximate

estimate. The result of their inquiry is to shew that on

the 31st October, 1862, there was an apparent deficiency

of £4400 Is. 2d. ; on the 4th April, 1864, of £5000 Is.;

on the 22nd December, 1864, £7000 Os. 5d. ; and on

the nth January, 1866, of £13,374 13s. 2d. Coming

11

down to the date of their inquiry, they found the cash in

the Treasury to amount to £704,203 2s. 2d., instead of

£756,770 8s. Id., which they say is the approximately

correct balance that ought to be there, leaving an apparent

deficiency of £52,567 65. 5d. Subsequent investigations havereduced this amount to £48,062 3s. \\d., but none of the

witnesses called by the plaintiff can swear to even this

amount as an actual deficiency, and they all admit that

additional inquiries might still further reduce it, although

not to any appreciable extent. No doubt the existence of

this apparent deficiency is an important ingredient in the

case which cannot be safely left out of consideration, but

strong corroborative evidence would be necessary to lead the

Court to the conclusion that the apparent represents anactual deficiency. In the cases of Southey and Davidson such

corroborative evidence is wholly wanting ; and in the case of

Davidson there is this further difficulty, that, if a deficiency

did accrue during his term of office, it is impossible to say

how much of it accrued during the time he was absent onleave in 1866. The case against Van Breda is muchstronger. Not only did the apparent deficiency increase

during the periods when he had charge of the Treasury,

but some of the books kept by him bear evident traces of

having been manipulated, so as to conceal an actual

deficiency which was created within the same periods. It

appears from the evidence that he was appointed to the

temporary charge on the 22nd November, 1861, and that

it was the practice of the Government on such occasions to

order an examination of the Chest. According to an entry

in the rough cash-book, such an examination actually took

place on the 25th November. The practice of the office

was to count the cash at the end of each working day, andcheck its correctness by reference to the rough cash-book,

in which Van Breda's entries of receipts and payments were

cast up at the end of the day. The original entries of the

23rd November, 1861, which was a Saturday, appear to

have been correctly made. They shewed a balance in handof £28,649 17s. 6Jd., of which £24,782 lOs. consisted in notes,

and £3000 in drafts. The amount put down for drafts

corresponds exactly with the entries in the draft-book under

the same date. But before the examination of the Chest

took place on the following Monday, the amount of notes

1876.Dec. 14.

„ 16.

„ 16.

„ 18.

1877.Jan. 12.



Southey andOthers.


Davidson.

12

1876.Dec. 14.

» 15,

16.

„ 18.1877.

Jan. 12.


Breda'sCuratorThe ColonialSecretary vs.Southey and

Others.The ColonialSecretary vs.Davidson.

was altered from £24,782 10s. to £22,182 10s., and theentry in regard to drafts, instead of appearing as an asset

of £3000 in hand, was altered so as to appear as a paymentof £4400 made by the Treasury upon a draft drawn onbehalf of the Guardians' Fund. When we turn to theentries in the draft-book and rough cash-book under thedate of 25th November, 1861, we find that the drafts of

£3000 have disappeared altogether. It has also beenfound that no drafts corresponding to the entry of £4400were ever drawn on behah of the Guardians' Fund, and theconclusion is almost irresistible that the entry was made for

the purpose of concealing an actual deficiency of thatamount. This conclusion is strengthened by the circum-stance that, at the earhest subsequent date for which anapparent deficiency has been ascertained, viz., 31st October,

1862, the sum thus ascertained (£4400 Is. 2d.) corre-

sponds almost exactly with the amount of the fictitious

entry (£4400). Coming down to the month of December,1864, when Van Breda was about to reUnquish the tem-

porary charge of the Treasury upon the appointment of

Davidson, and when an examination of the Chest would, in

the ordinary course, take place, we find another series of

fictitious entries to conceal a deficiency of £4000. In the

cash-book of the 8th December, 1864, the Guardians'

Fund is debited with a draft of £1000, which never was

drawn. Credit is taken for a payment of £3042 8s. 8d. out

of the Surveyor-General's deposit to one Papenfus, whereas

in reahty no more than £42 8s. 8d. had been paid to him,

and the item of drafts in hand was altered from some

number (probably £7726 18s. 8d.) to £3726 I85. 8d. In

the rough draft-book the balance of drafts for the day is

represented to be £3726 18s. 8d., but this sum is arrived

at by deducting from £7726 8s. 8d. the sum of £4000 as

drafts exchanged. A fortnight afterwards, viz., on the

22nd December, 1864, an examination of the Chest washeld. In the meantime, however, a portion of the sumdeficient must have been replaced in the Treasury, for the

apparent deficiency found by Todd and Hoffmann to exist

on the 22nd December, 1864, amounted to no more than

£7000 Os. 5d., whereas, the total deficiency concealed byfalse entries amounted to £8400. It has already been

remarked that the apparent deficiency on the 4th of April,

13

1862, the day when Van Breda took temporary charge for

the second time, was £5000 Is., so that on the expiration of

his second term of office the deficiency had increased by£1999 19s. 5d. Adding to this the sum of £4400, we find

a total of £6399 19s. 5d., as the amount of deficiency whichaccrued during Van Breda's first and second terms of office.

No explanation of this deficiency or of the fictitious entries

has been offered on his behalf, and the Court is placed in

the unpleasant position of having to decide upon a claim

which involves a charge of the grossest recklessness in

deahng with public monies, if not of fraud, against a

person who is hopelessly insane. Under such circumstances,

a judge or jury would naturally be astute in seeking for

some satisfactory explanation of the incriminating evidence

against the defendant and to give him the benefit of anyreasonable doubt which might arise out of the evidence.

Justice on the other hand requires that his insanity should

not place him in a better position than he would have been

in if he had not unfortunately been deprived of his reason,

and that if the evidence against him is conclusive the Court

should not shrink from the duty of holding him liable

for any monies for which he has failed to account. Butthen it has been argued by his Counsel that if it be true

that he has failed to account for monies received by him,

and has made fictitious entries to conceal deficiencies which

accrued during his term of office, he is criminally liable,

and that the only remedy which the Crown has against himis by indictment. Now, assuming him to be criminally

liable, does it follow that the Crown is debarred of its

civil remedy ? Upon principle as well as authority this

question must be answered in the negative. The RomanDutch Law as well as the Civil Law clearly recognised the

right of every person from whom anything is stolen to

recover the thing stolen, or its value, by a civil action. In

the case of pubhc officers having charge of public money, whoappropriate any part of it to their own use, or lend it to

others, or falsify the books of account, they were liable to

a civU action for four times the amount of the money lost to

the Treasury, besides being liable to severe punishment,

such as imprisonment and even banishment, if found guilty

in a criminal prosecution {Matthceus de Criminibus, p. 578).

1876." Deo. 14.

., 15.„ 16.

,. 18.1877.

Jan. 12.



Southey andOthers.


Davidson.

14

1876.Dec. 14.

„ 15.

„ 16.

„ 18.1877.

Jan. 12.


Breda'sCiuratorThe ColonialSecretary vs.

Southey andOthers.


Davidson.

Supposing a public officer, after enriching himself out of

public funds, commits suicide, could it be successfully con-

tended that the Crown would be deprived of its civil remedyagainst his estate ? Certainly not. The circumstance that

he has eluded public justice affords no reason why the

Crown should not recover back its own. In the passage

already cited from Matthceus, it is expressly laid down that

the civil action may also be brought against the heirs of the

defaulter, provided it be instituted within a year after his

death. And if such an action hes against the heirs of the

defaulter, a fortiori would it lie against the curator of a

defaulter who is still ahve, but insane. In either case the

only requisite is that the charge should be clearly established.

In the case of Van Breda there is overwhelming proof that

he has failed to account for the sum of £6399 19s. 5d. at

least, and there must be judgment against him for that

amount with costs. In the cases of Southey and Davidson

the failure on their part to account for monies received has

not been clearly established, and they must accordingly be

absolved from the instance, with costs.

Denyssen, J., concurred.

FiTZPATRiCK, J. : I quite agree with the very able and

learned judgment of the Chief Justice on the law of this

case, but there is one part of it on which I wish to make a

remark. It is palpable and patent to everyone that Mr.

Davidson could not excuse himseK for not having kept a

stricter watch over the affairs of the Treasury. But, at the

same time, independent of his legal habihty, there was a

moral responsibility on his part to the public for the manner

in which he discharged or neglected his duty, and I think

it only fair to him to call attention again to a document

which he put in, being the only instructions, verbal or

written, which he ever received, viz., the letter of July

19th, 1864, from Sir Philip Wodehouse to Mr. Davidson.

It appears to me that that letter was only calculated to

leave an impression on his mind that he was to be nothing

but a nominal Treasurer-General, and that all that was

wanted was a political adherent. At that time there was

no responsible Government estabhshed. There was no

15

Standard Bank then having the custody of all the monies is^e.

of the Colony. All the CivU Commissioners scattered .. is.

broadcast over this large Colony had a chest containing " is-o 1877.

real specie—real bond fide money—and there was not the Jan. ik

slightest intimation that Mr. Davidson was to have the The colonial

1 .1.1. p • 1 i./^T Secretary 7's.

heavy responsibility of seeing that this Colony was not Breda's cm-ator.The Colonial

robbed wholesale or in detail by the various custodians of secretary's.

,1 , .. mi 1 1 • 1 • TSoutheyand

the pubhc money. ihe letter he received was m the others.

J. ,, . The ColonialtOliOWmg terms : secretary w.

" Graham's Town, July 19th, 1864.D*^"!'""-

" My dear Mb. Davidson,—Of course you know that Rawson is off

for England, and probably have correctly guessed that Southey will again

be chosen to act as Colonial Secretary, and I now wish to ascertain yourown feelings in respect to the office of Treasurer. You will readily

suppose that in filling up this office, the most important consideration

with me is of necessity general Parliamentary and Executive capacity andthe disposition to render active assistance to the Government in the

general administration of affairs. Will you, therefore, say plainly if youare sufficiently satisfied with the aspect of affairs, as they have presented

themselves in the form of Government measures proposed to ParUament,

and otherwise, to feel disposed to sail in the same boat and to do yourbest to steer her safely through the many breakers that always surround

her.

" I should explain that I write this without having received a wordfrom the Secretary of State on the subject, and without the sUghtest

knowledge of any intentions he may have. But if you accept my offer,

and I receive no contrary instructions by the next mail, I shall be happyto recommend you to him.

" In the meantime may I beg of you to consider this as quite private;

" Yours ever truly, P. Wodbhouse."-

There is nothing in that letter about keeping an eye over

the Civil Commissioners, and on Mr. Davidson complaining

of additional duties imposed upon him, Sir Philip Wode-house pooh-poohed the idea, and said that Breda would look

after the Treasury. I do not say that Mr. Davidson wasnot wrong in the view he took of his duties, but it is somemoral mitigation of his conduct that he had received this

letter. Something has been said about the letter being a

private one, and about Mr. Davidson having no right to

produce it. I deny that it could be considered a private

letter. Sir Philip Wodehouse said :" In the meantime

may I beg you to consider this as quite private." But such

privacy was only intended to exist for the time being, and

that time has now passed.

16

Def 14Judgment accordingly in the suit against the Curator of

,.16. Breda for £6,399 195. 5d., and costs ; and absolution from

I'm**^® instance with costs in the cases against Southey and

Jan. 12. others and Davidson.The ColonialSecretary vs. rpiaintifl's Attorneys, Eeid & Nephew "|

Breda'sCurator. LDelendants' Attorneys, Redelinshuts & Wessels ; Fairbbidqe & Aederne. I

J.ne ColonialSecretary vs.

Southey andOthers.


Davidson.

Van der Byl & Co. vs. Smit.

Insolvency.— Vigilant Creditor.

Where one creditor had obtained judgment against a debtor,

and sued out execution thereon and attached property, andanother creditor subsequently, but before the execution sale,

obtained judgment, and on suing out execution no goods

remained to satisfy his judgment, the Court decreed the

sequestration of the debtor^s estate.

j2n^\'2Messrs. Alexander & Co. obtained judgment on the 20th

Van (teTs 1 & November, 1876, upon certain promissory notes made by theCo. vs. smit. defendant Smit, and sued out execution and .attached

property thereunder. The plaintiffs, Messrs. Van der Byl

& Co., on the 7th December, also obtained judgment against

the defendant Smit, and upon suing out execution the

Sheriff made a return to the Avrit of nulla bona, as all the

goods and chattels of the defendant had been attached at

the instance of Messrs. Alexander & Co. The plaintiffs

thereupon obtained a provisional order for the sequestration

of the defendant's estate, and summons for final adjudication

was issued returnable this day.

The defendant made default.

Messrs. Alexander & Co. filed affidavits setting forth the

above facts, and alleging that the proceedings were taken

solely to defeat their judgment and the benefit of their

attachment. The plaintiffs rephed, denying this latter

assertion, and shewing that they held general bond duly

registered, passed by the defendant in their favour before

the debt to Messrs. Alexander & Co. was incurred, and that

they would lose the benefit of their security if the attach-

ment was allowed to go through.

17

Jacobs, A.-G., for Messrs. Alexander & Co., opposed the i877.^

final adiudication of defendant's estate, except upon terms. —T. • 1 , ,1 T . Van der Byl &it was evident these proceedings were a mere contrivance to co. rs. smit.

get rid of the judgment and execution.

[De Villiees, C.J. : Have we any option ? An act of

insolvency has been committed. This is a creditor whoapplies for sequestration, not the insolvent himself whopetitions for leave to surrender.]

There is no compulsion on the Court imposed by either

the 5th or 17th sections of the Insolvent Ordinance. Messrs.

Alexander & Co. had been vigilant, and it was a wholesomerule to protect the vigilant creditor. It was only a question

of competition between them and the plaintiffs.

Upington, for the plaintiffs, contended that Messrs. Alex-

ander & Co. had no locus standi in this case. In a matter

of compulsory sequestration no creditor had a right to step

in and ask the Court to stay execution. The Insolvent

Ordinance gave no discretion to the Court, or power to

impose terms. Even if there was such a discretion this wasnot a case for its exercise, as Messrs. Alexander & Co. were

trying to snatch the goods which had been hypothecated to

plaintiffs long before their debt was incurred.

De Villiees, C.J. : If it had been shewn that the

mortgage bond to the plaintiffs had been passed after the

date of the notes, the Court might have stayed execution on

plaintiffs' judgment. But the bond was duly registered

and notice of its existence thus given to Messrs. Alexander

& Co. before they gave credit to the defendant. Here an

act of insolvency has been committed, and there is no other

course open to the Court than to decree final sequestration

of the defendant's estate. The plaintiffs will have the

costs of opposition, but the opposing creditors may get

their costs out of the estate.

Defendant's estate adjudicated sequestrated accordingly;

the opposing creditors to pay costs of opposition, but to

have their costs out of the estate.

rpiaintiffs' Attorney, C. C. DE VIUIERS. "1

LOpposing Creditors' Attorneys, FAIKBRIDOB, AkdBKNB, & SCANIBN.J

Vol. VII.—Part I.

18

Raubenheimer vs. Campher.

Costs.

Where to a Circuit Court summons the defendant took anexception which proved fatal to the hearing of the case,

and also pleaded over, costs only of exception were al-

lowed, but not costs of witnesses and of other expenses

incurred by defendant to defend the action had it gone to

trial. On appeal the Supreme Court refused to interfere

with the Circuit Judge's decision as to costs.

1877. The plaintiff Campher sued the defendant Eaubenheimer—- in the Circuit Court for George, to have a certain deed of

vs. Campher. sale Set aside. The defendant excepted to the summons on

the ground that it disclosed no cause of action, and also

pleaded over the general issue. When the case was called

on, the Circuit Judge, Mr. Justice Denyssen, sustained the

exception with costs, but refused to make any order for the

costs incurred by defendant in preparing briefs for trial and

for witnesses' expenses.

The defendant now apphed to the Court for leave to

appeal from the said decision of the Circuit Judge, and

prayed that the costs incurred by him in defending the

said suit should be awarded to him. The plaintiff had

taken no further proceedings, but had abandoned his action.

TJpington, for the defendant, now apphcant, contended

that the exception taken was not a " nominate exception"

{Van der Linden, p. 4=14); and therefore defendant had

been bound to plead over and also to prepare a defence in

case the exception should be overruled.

Buchanan, for the respondent, submitted that the decision

of the Circuit Judge was strictly in accordance with law

and practice ; and cited Liesching, Trustee of Buchenroder,

vs. Cuyler, 1 Menz., 542.

The Court dismissed the appUcation, with costs, refusing

to interfere with the decision of the lower Court as to costs.

rApplicant's Attorney, C. C. DE Villiers. "I

LKespondent'a Attorneys, Tbedgoid & Httli.J

( 19 )

IT 4 'l^f^li* U

J,

MAGISTEATES' CASES REVIEWED.

Queen vs Meyer.

Crime of contravening section 18, of OrdinMnce

No. 25, 184:1.—Fine.

To constitute the crime of contravening section 18, of OrdinanceNo. 25, 1847, the offence complained of must have been

committed in a thoroughfare or public place.

Where a person is convicted of contravening section 18, of

Ordinance No. 25, 1847, the Magistrate cannot pass

sentence of imprisonment without giving the option of

paying a fine.

Creating a disturbance in the public street is not a contra-

vention of section 18, of Ordinance No. 25, 1847.

De Villiers, C.J. : The case of the Queen vs. Meyer has is??.

come before me as Judge of the week from the Special ^f^^-

Justice of the Peace at Calitzdorp. The accused was '^MeYei^'

charged with the crime of contravening the 18th section

of Ordinance No. 25, 1847, in making use of abusive

language from which a breach of the peace was justly

apprehended. The accused pleaded guilty, and was sen-

tenced to twelve days imprisonment with hard labour.

It would seem that most Justices of the Peace lose sight

of the fact that to constitute the offence of contravening

this section, it is necessary that the language be used in a

thoroughfare or public place. Many cases come before mein which evidence is altogether wanting whether or not the

offence was committed in a public place, and such evidence

is wanting in this case. But assuming in this case that the

words were used in a public place, the Justice of the Peace

had no power to sentence the prisoner to twelve days im-

prisonment, without giving the option of a fine. The con-

viction must be quashed.

2

20

Feb"i. ^ ^^s® ^as also come before me from the Special Justice

QuJS^s. '^^ *^^ Peace at Heidelberg, where the accused was chargedMeyer. with Contravening this 18th section by creating a dis-

turbance in the pubHc street. This is not an offence underthis section of the Ordinance, whatever it may be againstthe Municipal Regulations. The conviction must bequashed.

Morum Bros.

Smith vs. Morum Beds.

Magistrate's Court.—Counter-claim.—Set-off.—Jurisdiction.

Where the defendant in a suit in the Magistrate's Court filed

an admitted liquid counter-claim far exceeding the amountsued for by the plaintiff, the Magistrate held justified in

treating such counter-claim as a set-off to plaintiff's claim,

although the amount of the counter-claim exceeded the

limit of the Magistrate's jurisdiction.

Feb"i. The plaintiff sued the defendants in the Court of the

SrnitiTiJs.Resident Magistrate of Aliwal North, for the recovery of

the sum of £12 12s., the rent of certain premises hired bythe defendants. The defendants pleaded the general issue,

and then filed a counter-claim for £167. The plaintiff's

attorney objected to the counter-claim, as being for an

amount far in excess of the Magistrate's jurisdiction. As,

however, an item £67 in the counter-claim was admittedly

due by the plaintiff, the Magistrate granted the defendants

absolution from the instance in respect of the plaintiff's

claim, with costs. From this judgment the plaintiff

appealed.

Maasdorp, for the plaintiff and appellant, admitted that

it was allowed by law to compensate mutual debts, but they

must be debts of the same character, which was not the case

here. There was no compensation or set-off attempted, for

the defendant pleaded only the general issue to plaintiff's

claim. The Magistrate ought therefore to have adjudicated

on that claim ; and as the counter-claim was a separate suit,

he ought not to have entertained it, as the amount of the

claim was beyond his jurisdiction. It was not competent

for the defendant to split his demands so as to bring a

21

^ 1877.Feb. 1.

Smith vs.

portion of his claim within the Magistrate's jurisdiction

{Benningfield vs. Duchitt, 3 Menz. 451).

Buchanan, for the respondents, submitted that in effect Morum Bros,

the defendants had pleaded a set-off, the consequence of

which, a sufficient portion of the counter-claim being ad-

mitted, was to extinguish plaintiff's claim. The mutual

debts were both of a hquid nature [Van der Linden, pp. 199,

271), and could therefore be compensated.

De Villiers, C.J. : Substantially this is a plea of com-pensation, although it has not been pleaded in strict form.

The simple question is, whether the Magistrate was justified

in treating this counter-claim as a set-off. Clearly he wasso justified, because the plaintiff admitted that he owed at

least £67 of the amount. The Magistrate was right in

saying that as this amount was admitted, it extinguished

the plaintiff's claim in toto. The Magistrate however did

not give judgment for the defendants, as he might have

done, but gave absolution from the instance, which left the

plaintiff in a better position. As the appellant does not

apply to have judgment entered against himseh, which is

the alteration of the sentence which would be justifiable, the

appeal must be dismissed with costs.

Appeal dismissed accordingly, with costs.

rApplioant's Attorneys, RBDEtraaHtJYS & WESSELS. "1

.

LKeapondents' Attorneya, Fairbkidoe.iAiidbune & Soanlen.J

JOTJBERT VS. EXECXTTOR OF RUSSOUW.

Will.— Witness.—Act No. 22, 1876.

A will executed before the passing of the " Attesting Witnesses

Act, 1876," set aside, on the ground that one of the at-

testing witnesses was one of the instituted heirs.

The plaintiffs were the minors Joubert, who were heirs

ad intestato of the late Widow Malan. The Widow Malan,

who had died recently, had in 1871 made her last wiU and

testament, instituting among others some of her coUateral

relatives as her heirs. One of the attesting witnesses to the

1877.Feb. 1

.Toubert vs.

Executor ofRussouw.

22

Feb"i.^^ ^^^ °^® ^f *^^ instituted heirs. The plaintiffs instituted

Joubertss.*^^ action to have the will set aside and declared null and

^SoSw?^void. The facts were not disputed.

Jacobs, A.-G., for the plaintiffs, relied on the fact that as

the will was executed in 1871, it was not affected by the

"Attesting Witnesses Act," No. 22, 1876. By our lawprevious to this Act, a person instituted as heir was notcompetent to be a witness to the will (Van der Linden,

p. 125 ; Grotius, 2, 17, 12 ; Voet, 28, 1, 9 ; and see ActNo. 16, 1874).

Cole, for the defendant, said that it appeared that byRoman Law and by Roman Dutch Law that an instituted

heir could not be a witness to the testament. He had not

been able to find any authorities to the contrary.

De Villiees, C.J. : It is clear that this will must be

set aside. Under the present law as amended by the At-

testing Witnesses Act, 1876, a wiU made since the passing

of that Act would be set aside only so far as it conferred anybenefits on the attesting witnesses.

Judgment accordingly for the plaintiffs ; costs to comeout of the estate.

rPlaintiffs' Attorney, Bekeangb. lLDefendant's Attorney, PAUi de Viilieks.J

Beukes vs. Steyn.

1877.Feb. 1.

Beukes vs.

Steyn.

Civil action.—Malicious procedure.—Exception.

Where a person has set the law in motion, whether in a civil

or a criminal case, if damages are claimed from him for

so doing, the declaration must aver malice, and malice

must he proved. An allegation that defendant had in-

stituted civil proceedings though he knew he had no legal

right so to do, without stating that he had been actuated

by malice, will not disclose cause of action.

Plaintiff's declaration set forth that on the 23rd No-vember, 1865, he made and passed his promissory note for

£67 10s., payable two months after date, in favour of one

23

Le Grange ; that in the year 1871, plaintiff left the Colony ^isjr^

for the Free State, where he resided until 1873, when he -;

—

came on a visit to some relations at Appelsbosch, in the steyn.

division of Swellendam, and that whilst he was there

defendant purchased through his agent Ashby, from plain-

tiff, ten oxen, for £96, payable in cash ; that when plaintiff

applied for payment defendant produced and claimed the

right to set-off the above-mentioned promissory note, pre-

tending that he was the lawful holder thereof ; that plaintiff

refused to allow such set-off, and summoned defendant be-

fore the next Circuit Court at Swellendam for paymentof the said £96, to which summons defendant pleaded a

right to set off the said note, but the Court refused to allow

such set-off and gave judgment for plaintiff ; that defendant

appealed to the Supreme Court, but such judgment wasconfirmed by the Supreme Court ;* that afterwards, andafter the plaintiff had left Appelsbosch, and was detained

from various causes at Oliphant's Run, in the division of

Oudtshoorn, the defendant sued out a summons for pro-

visional sentence upon the said promissory note, which

summons never reached plaintiff, and of the existence of

which he was unaware ; that in default of appearance

through such ignorance, defendant on the 28th May,

1874, obtained provisional sentence, and afterwards on the

31st December, 1874, sued out a writ of execution there-

under, by virtue of which the Sheriff, on the 6th January,

1875, at Buffels Drift, in the division of Swellendam, at-

tached a cart, two horses and set of harness, in the lawful

possession, although not actually the property, of the plain-

tiff ; that the issuing of the said summons, the procuring

of provisional sentence, the issuing of the writ, and of the

attachment thereunder, were wrongfully and unlawfully

made, done and contrived by the defendant, who well knew

that the plaintiff, as the fact was, was not lawfully indebted

to defendant on the said promissory note ; and the plaintiff,

having insisted that the defendant should go into the prin-

cipal case on the said summons for provisional sentence,

the defendant, on the 31st August, 1875, withdrew the

said suit, and paid the costs of the plaintiff already incurred

therein ; and that by reason of the aforesaid wrongful and

* Vide Beukes vs. Steyn, 4 Buck S. C. Rep. (1874), p. 18.

24

^1877. unlawful acts of the defendant, the plaintiff sustained— damages to the amount of £200, for which sum he prayedsteyn. judgment, or other rehef, and costs.

The defendant, before pleading, excepted to the declara-

tion as bad, informal, and insufficient in law, and that it

disclosed no cause of action.

Buchanan, for the defendant, in support of the exceptions,

contended that it was necessary, in an action of this nature,

to allege that the plaintiff had acted maUciously and with-

out any reasonable or probable cause. As a rule, in civil

suits the payment of costs was the only penalty incurred bythe unsuccessful party; and in an action for malicious

prosecution of civil proceedings special damage must be

alleged and proved in order to sustain an action (BuUen and

Leake, 3rd ed., p. 350 ; Saunders on Pleading, 2nd ed., vol. 2,

p. 321 ; Saxon vs. Castle, 6 A. & E., 652 ; De Medina vs.

Grove, 10 Q. B. 168 ; Cotterdl vs. Jones, 11 C. B. 713).

Cole (with him Maasdorp), for the plaintiff, submitted

that the declaration disclosed a good cause of action. The

defendant knew he had no right to take legal proceedings,

and there was no necessity to allege malice in a claim

for damages for a wrongful seizure of property (1 Chitty on

Pleading,_^02). -i

De Villiers, C.J. : I have no doubt that these excep-

tions must be allowed. Where a person has set the law

in motion, whether in a civil or criminal case, if damages

are claimed from him for so doing, there must be an allega-

tion of mahce, and mahce must be proved. In the present

case the only allegation approaching the assertion of mahce,

is the allegation in the declaration that the issuing of

summons and of subsequent proceedings " were wrongfully

and unlawfully done and contrived by the defendant, who

well knew that the plaintiff, as the fact is, was not lawfully

indebted to him on the said promissory note." Assuming

that to be the case, and assuming that a person beUeves,

either from the advice of Counsel, or from knowledge he has

gained in any other way, that he has no legal right, stiU he

might say that notwithstanding that belief he would apply

to the Court, and get its decision. He would thus run the

risk of having to pay costs if he was unsuccessful ; and even

25

run the risk of an action for maliciously instituting proceed- isjt.

ings if he was actuated by maUce, but that would not reheve —, 1 , . . „ . 1 . . „ . , . Beukes v

the plaintiff from the necessity or alleging and proving steyn.

malice, which is an essential ingredient of the action. Theexception must be allowed.

Denyssen, J. : I am of the same opinion. I think

maMce is of the very essence of the action, and it must bedistinctly alleged and proved.

FiTZPATRicK, J., concurred. i ,

Exception allowed accordingly, with costs.

rPlaintiff's Attorneys, Christie & Du Preez. "1

LDefendants" Attorneys, Eaikbiiidge, Ardebnb, & Soanlen.J

Van dee Byl & Co. vs. Solomon.

Minor.—Batification of Contract.

An executory contract entered into on behalf of and to the

prejudice of a minor, requires express ratification by the

minor after attaining his majority to be enforceable

against him.

Defendants father bought at auction certain erven of land in

the minor's name at a price exceeding their value, but did

not pay the price or receive transfer. After attaining his

majority the minor offered to pay a small forfeit rathe.r

than complete the purchase. Held,

—

that there had been

no ratification of the contract.

Plaintiffs sued the defendant in the Court of the Resident is??.Feb 9

Magistrate for Tulbagh, to recover the sum of £37 14s. 6d. vanderB'yi&

with interest thereon, being the purchase price of a certain

lot of ground situated in the village of Wolseley. Thedefendant resisted the claim on the ground of lesion andminority ; and the Magistrate dismissed the case with costs.

The plaintiffs appealed.

It appeared that there had been a sale of erven in the

newly laid out village of Wolseley. Mr. Benjamin Solomon,

26

Feb"6.defendant's father, attended the sale, and purchased two

Van STiyi & ^°*® ^^ ground, one in the name of each of his two sons,Co. .S.Solomon. then minors. The sons were entered as the purchasers on

the vendue roll, but the purchase money was never paidand no transfer had as yet been effected. The defendantsigned the conditions of sale while a minor. After comingof age the defendant wrote to plaintiffs that rather than bedrawn into Court he offered to pay a sum of money as aforfeit, but the offer was not accepted. The defendant saidthat at the time of the purchase he thought the ground wasa present from his father, who had since become insolvent,and that it was not worth the price bid for it.

Upington, for the appellant, contended that a vahdcontract had been entered into for the sale and purchaseof the property, and one that could be enforced againstthe vendors. In like manner the purchaser ought to bebound to complete his contract. The defence of minoritydid not apply here, as the defendant's father and natural

guardian had assisted in entering into the contract. More-over the defendant after attaining his majority had ratified

the contract in the letter in which he offered to pay a

forfeit. A contract entered into by a minor was valid,

unless repudiated on his coming of age. There had beenno repudiation here (Pothier on Ohlig., p. 1, c. 1, art. 4

;

Chambers on Infancy, pp. 432, 435).

Jones, for the respondent, submitted that there had at

most been an executory and not an executed contract.

Even if a guardian contracted for his ward, the ward could

come into Court and claim restitution. There had not

been any ratification, either actual or constructive [Pothier,

s. 40 ; Grotius, 3, 1, 26 ; 3, 48, 10 ; Voet, 4, 4, 54).

De Villiers, C.J. : In this case the plaintiffs seek to

compel the defendant to execute a contract of sale andpurchase entered into by defendant's father during the

minority of his son. The contract had not been executed

but was still executory when the defendant became of age.

The definition given by Story (Law of Contracts, sec. 22)

is :" An executed contract is one in which nothing re-

mains to be done by either party, and where the trans-

action is completed at the '^moment that the agreement

27

is made,—as where an article is sold and delivered, and is"-

payment therefor is made on the spot. Contracts to sell —-personal property are executory, while a completed saleCo.M.soiomon.

by delivery is executed." But if the property sold hadbeen delivered by the passing of transfer and the purchase

price had not been paid, no doubt it would have required

very slight evidence of adoption after his coming of age to

bind the defendant. But in this case the contract wasnot completed, and there remained something to be doneon both sides. 8tory clearly points out the difference in

these two classes of contracts. He says (sec. 114) :" There

is a distinction between those acts and words which are

necessary to ratify an executory contract, and those whichare sufficient to ratify an executed contract. In the latter

class of cases, any explicit acknowledgment of Uability will

operate as a ratification. But in order to ratify an executory

agreement made during infancy, there must be not only anacknowledgment of primary Uability, but an express

promise, voluntarily and dehberately made by the infant

upon arriving at the age of maturity. No act or word,

therefore, which does not unequivocally imply a new andprimary promise by the infant himself, will be sufficient to

create a liabiHty on his executory contract." Story's views

appear to me to be quite consistent with our law. There

has been no ratification or consent in the present case onthe part of the minor after attaining his majority. Theletter which has been rehed upon is only an offer to makea payment to avoid being forced in Court to take the

exception which has now been raised. I therefore do not

think that, assuming the contract to be of such a nature as

to require ratification, it has been duly ratified. Thequestion still remains whether the contract was of such a

nature as to require ratification. There is nothing to shewthat the purchase of the erven was for the benefit of the

minor. On the contrary it would rather appear to have

been to his prejudice. Now although a father, as the

natural guardian, has the administration of his minor

children's property, his powers are not unlimited. He mayemploy their income for their sustenance, education, andsuch like purposes, and may place their money into ap-

propriate investments. But I can find no authority for

holding that he may bind them to the purchase of land for

28

^1877^. the payment of which he has no funds of theirs in hand.

Van toB )&^ ^°' however, find authority for the view that minors will

Co.OT. Solomon, be rcUeved by means of the restitutio in integrum against

contracts made to their prejudice either by themselves

together with (" nevens ") their guardians, or by their

guardians alone {Orotius, 3, 49, 10, and see Cod., 2, 24, 2).

Under these circumstances I am clearly of opinion that the

contract now in question cannot be enforced against the

defendant without clear proof of ratification, and that in the

absence of such proof the Magistrate properly dismissed

the case.


("Appellants' Attorney, C. C. DE VULIEKS. HLBespondent's Attorney, Tkbdgold. J

Dtr Plessis vs. Wilkinson.

Railways Act, No. 19, 1874.

—

Materials for railway.—Woodand water.

The respondent, a person authorised under the Railways Act

to take materials for the construction of a railway, inter-

dicted, pending an action to try rights, from using for

domestic purposes the water of a well near to applicavA^s

homestead, and also from cutting wood on the farm else-

where than along the track of the railway line ; hut not

interdicted from taking water found elsewhere on appli-

cant's land, it not appearing that the applicant would

suffer any immediate injury from such use.

1877. The applicant was a farmer living at the " Draai," in the

Beaufort West district, and the respondent was the contractor

with the Government for the construction of the hne of rail-

wiiidnson. ^^^ between Worcester and Beaufort West. The apphcant,

on an ex parte motion, obtained an interdict restraining the

respondent from taking water from certain weUs on the farm,

and from cutting and using firewood for domestic purposes.

It appeared that the new hne of railway ran for some

miles through apphcant's farm. Without any previous ar-

Feb„ 16

Da Plessis vs.

29

rangement with applicant, the respondent had entered on i877.

the farm with a large body of labourers and navvies, who .. ib-

had formed a camp not far from applicant's home, and du piessis mhad made use for the purposes of cooking food, &c., of

the water of certain wells near the house where apphcantwatered his stock, and had also opened other weUs in

the river bed. They also had cut a quantity of firewood

on the farm. The respondent alleged that the firewood

had only been cut along the fine, so as to clear it for

work.

Upington, for the apphcant, though admitting the right

of the respondent to enter on the farm and to take material

thereon for railway purposes, denied that there was anylegal grounds for depriving applicant of wood and water for

the domestic purposes of the labourers on the railway works.

The injury to applicant would be irreparable if he wasdeprived of the water necessary for his stock and farming

operations.

Jacobs, A.-O., for the respondent, submitted that there

had been no iUegality in cutting the bush to clear the line.

As to the water, it was taken mainly from weUs in the river

bed made by respondent himself. One of the requisites for

an interdict was that irreparable injury would be done.

Here any injury could be compensated for in damages.

The respondent claimed the right to take water, otherwise

the pubhc interests would suffer, and public works be

stopped. This right must be tried by action, and could not

be settled on an application for an interdict.

Upington, in reply, contended that respondent was in the

position of a spohator, and was not entitled to say that he

would deprive apphcant of his water and then compensate

him in damages. The applicant was entitled to an interdict,

and if respondent had any rights, he could enforce them in

an action.

De Villiers, C.J. : If this had been the case of one

private person using the water of another private person,

there would have been no doubt about granting the

interdict. But it was alleged that the water was required

for railway purposes, in connection with the construction

of the line of railway to Beaufort West. The Railways

30

^1877.^ Act, No. 19, 1874, provided for the entry upon private1 ^- property and the taking of land and materials neces-

^wnSon**' ^^^^ ^°^ *^® making of the line, leaving the question of

compensation to be settled afterwards. An importantquestion may arise under this Act, whether water will comewithin the definition of " materials " or not. This question

cannot now be settled in a summary way, but must be madethe subject of an action. The question now to be decided

is, whether the action taken by the respondent is of such a

nature, that the applicant will suffer immediate injury if it

is not interdicted. There is no allegation in the affidavits

to that effect, or that the applicant has been using or

requires the water taken from the wells sunk by the re-

spondent for his, the applicant's, own purposes. I certainly

think that the applicant will suffer injury if the well near

his home, and which he has always used, be interfered with,

and therefore the interdict will continue in respect of that

well. But as to the other wells mentioned the interdict

will be dissolved. Then as to the wood, the respondent says

that the only bush cut by him was that growing where the

hne was to be constructed. The Court will continue the

interdict restraining respondent from cutting any wood on

the farm, except that required for clearing the actual line

of railway. The respondent's right to use the water at all

must be settled by an action. The costs of these proceedings

will be costs in the cause.

Interdict made absolute accordingly with reference to

the well near apphcant's home and to the cutting of wood

on the farm except on the line of railway ; costs to be costs

in the cause.

TAppUcant's Attorney, C. C. de Villiers. 1Lnespondent's Attorneys, Reid & Nephew.J

[Note.—The matter was not mentioned again, the parties

having come to an amicable arrangement.]

31

Upington vs. Mtjebay and St. Leger.

Defamation.—Discovery.

Application refused, after action commenced, against respon-

dents, who were the printers and publishers of a newspaper,

for an order to compel them to make discovery and allow in-

spection of the original manuscript of a letter published by

them containing defamatory statements.

The respondents, who were the printers and pubHshers

of the Gape Times newspaper, were required to shew cause

why they should not be ordered to suffer the plaintiff to

inspect the original manuscript of a certain letter signed" Looker-on," printed and published in the Gape Times on

the 23rd January last, and to inspect all letters or docu-

ments from the writer of the said letter having relation

thereto, written either prior or subsequently to its publica-

tion, and to disclose to the plaintiff the name of the writer

thereof ; and why the plaintiff should not have further or

other relief.

Applicant's aflSdavit in support of the motion set forth

that he was a barrister-at-law practising in this Court, andthat he had sued the respondents for the recovery of

damages or the amende honorable in an action of libel,

which suit was now pending ; that certain of the libellous

statements were contained in an anonymous letter pubhshedin the Gape Times on the 23rd January last, of whichnewspaper the defendants were editors, printers, and pub-

lishers ; that applicant had been informed and believed that

the original manuscript of the said libellous letter and a

certain document containing the name of the writer thereof

were in the possession or power of procurement of the de-

fendants, and that without an order of Court the applicant

would not be able to inspect the said documents or satisfy

himself as to the name of the writer ; that applicant wasadvised and beheved that it was material and necessary, in

the interests of justice and for the just trial of the said

action, that he should be informed by the defendants of

the name of the said writer, and to be allowed to inspect

and take copies of the said documents ; and that if such

inspection and discovery be ordered, applicant would be

1877.Feb. 15.

Upington vs.

Murray andSt. Leger.

32

1877 able to establish a strong case of malice against the said

,,.—— writer and the defendants, who were responsible for the

Upmgton m. . . , . ,

.

Murray and mahcious acts of the Said writer ; that applicant had re-

ceived information as to the name of the writer, which

information he believed to be true, but in the absence of

positive proof, which could only be furnished by the said

discovery and inspection, appUcant was unable to take pro-

ceedings against the said writer as appHcant intended to

do ; and if the said discovery and inspection be not granted

before the trial of the action against defendants, applicant's

remedy against the writer, who was not connected with the

newspaper, would be whoUy lost, and the said writer wouldescape from the consequences of his wrongful and maUeious

acts, as applicant was informed and beheved he was about

to depart from the country out of the jurisdiction of the

Court.

There were no answering affidavits.

Buchanan, for the appUcant, submitted that he was en-

titled to the order asked for on two grounds, first, because the

documents were material to the suit now pending against

respondents ; and, secondly, to enable applicant to proceed

against the writer. The appUcant stated in his affidavit

that he had been informed who the writer was, and that he

intended to take proceedings against him, so that in no waycould this be said to be a fishing appUcation. The nameof the writer, taken in connection with the subject matter of

the letter would of itself prove direct malice, and also that

respondents knew of this maUce and had been actuated byit in giving the letter pubUcation. It was also stated that

the respondents had taken an indemnity from the writer, so

that they were aware they were publishing defamatory

matter. As the documents which would be discovered

would shew this, they were most material to the issue. In

an action against the writer the respondents at the trial if

caUed as witnesses could not refuse to produce the docu-

ments or disclose the name of the writer, and why should

they not make the disclosure at once. If the order wasnot granted, the guilty party, who had set the Ubel going,

would escape altogether. In England, under statute 14 & 15

Vict. c. 99, either Utigant could compel the opposite party

to aUow inspection of aU documents in his custody or con-

33

trol relating to the action or other legal proceeding. To i877.

support an application for an order under this statute it was .— '

necessary to allege that an action was pending between the Murray and

parties,, and to state the nature of the action and of the

documents, the knowledge or belief that they were in the

possession of the other side, and that they were material,

giving reasons. All these requirements were present in

this application. An order for discovery would even begiven to support a justification. Though in general a

person who ventured to publish a Ubel was not entitled to

ask for an inspection of books and documents in the

plaintiff's possession for the purpose of getting up a justifi-

cation, if the defendant believed there was some particular

document, which he specified, and which he beHeved wouldsupport his case, or was necessary for his defence, he wouldprobably be entitled to an inspection. Even upon the

question as to whether a Judge had power to impose as

a condition for refusing to make an order of inspection" that the defendant do make an affidavit that the letter

if produced would tend to criminate him," there had been

a difference of opinion. Greater facilities for inspection

and discovery were now given by the recent Judicature

Act of 1875, but even under the previous Act, 6 & 7 Wm. IV.,

cap. 76, a defendant was compelled to make discovery of the

name of any person concerned as printer, publisher, or pro-

prietor of any newspaper, or of any matters relative to the

printing or pubhshing of any newspaper, in order the moreeffectually to bring or carry on any suit or action for libellous

matter contained in any such newspaper. It had been held

that there might even be an inspection of documents where

there was no issue to be tried, but merely bearing upon the

amount of damages. On principle the discovery ought to

be allowed, otherwise a mahcious slanderer might shelter

himself behind an unsubstantial pubhsher (Folkard on

Slander and Libel, c. 24 ; Hill vs. Campbell and Wife,

L. R., 10 C. P., 222 ; Pape vs. Lister, L. R. 6 Q. B., 242).

Cole, for the respondents, submitted that this was the

most curious application ever heard of. Apphcations of

this nature in England were made under the 50th section

of the Common Law Procedure Act, which required that

the document to be discovered was one to which the

opposite party was entitled. Here the applicant had com-

VoL. VII.—Past I. l,D

34

1877. menced his action against respondents for defamatory— statements published in their newspaper. The original

TJpington vs. . -^ . • i i * i i • •«•Murray and manuscript was m no way material to that smt, and plamtmSt. Leser

could not compel its production. In Davey vs. Pemberton

(11 C. B., N. S., 628), an apphcation for discovery of the

original of a letter containing defamatory statements wasrefused, the respondent's affidavit denjdng that he hadwritten such a letter. In Hill vs. Campbell and Wife

(L. R. 10 C. P., 222), a domestic servant was refused anorder of discovery of a letter written about her, which she

wished to see for the purpose of preparing her action.

Rainy vs. Bravo (L. R. 4 P. C. Cas., 287) was a recent case

in point. Bravo was a pohce magistrate and Rainy a

barrister and attorney practising at Sierra Leone. De-

fendant wrote a letter saying that a Mr. Gilpin could not

have plaintiff's services in his Court, as he had forbidden

Rainy to practise there any more, and if Mr. Gilpin wantedan honest man to conduct his case he must go to so and so.

An order for discovery of this letter was refused. In this

case how could it matter in whose handwriting the original

manuscript was. This Court had also recently refused

discovery in an application made by Attwell against Vander Ven and the editor of the Standard and Mail. Noauthority could be found to support the present apphcation.

Buchanan, in reply, said in AttwdVs case (5 Buch. S. C.

Reports (1875), p. 93), there was no letter pubhshed, andVan der Ven denied that he had ever hbelled the appli-

cant ; and moreover the Court was unable to make anyorder upon an unnamed person, who was simply described

as the editor of the newspaper. Here there was a Ubel

;

and there had been no attempt to meet the argument that

the Court should give its aid to prevent the prime moverof the wrong from escaping the just deserts due to his

conduct.

De Villiers, C.J. : I have not seen the letter complained

of, and so I am unable to say if it is libellous or not. If

it is libellous, I can quite understand the motives of the

applicant, considering the honourable position he occupies

in this Court, which induce him to clear his character andto bring the offender to justice. But the applicant has

adopted an unnecessary mode of procedure. The present

35

application is quite unprecedented, and contrary to the is??.

practice adopted in libel cases ; and the Court has no power .—^"

to assist the applicant. The appUcation must be refused, Murray and'.,, ,

-^^ -^^St. leger.

With costs.

Dbnyssen, J., and Fitzpateick, J., concurred.

Application refused accordingly, with costs.*

CApplicant's Attorney, C. C. de Villiers. 1

Eespondents' Attorneys, Fairbeidge, Aedekne & Soanlen.J

Walter vs. Powrie.

Defamation.—Member of Parliament.

The proprietor of a newspaper held liable in an action of

damages for defamation, to which he had pleaded only

the general issue, for publishing in his paper a letter

from a correspondent containing the following paragraph

referring to plaintiff as a Member of Parliament whohad been appointed Chairman of Committees :

" Thebehaviour of Mr. Walter, which is noticed by us, only

endangers his chance of being returned at the next election,

for since Mr. Molteno has guaranteed him a salary in

Parliament, he votes blindly on every question (' om het

bosch '), and is at present more a servant of the House of

Assembly than our representative."

The plaintiff was one of the Members for George in the is??.Feb 20

House of Assembly ; and as such Member had been ap- May is!

pointed Chairman of Committees, to which office there was w^tetvs.

a salary attached. The defendant was the printer and^'

'

publisher of the Mossel Bay Advertiser, a newspaper pub-

lished and circulating within the district of George. Thedefendant published in his paper a letter from a corre-

spondent signed " Ratepayer." The letter was headed" Divisional Council of George," and commented on the

action of the Divisional Council, of which plaintiff was

* [Since this decision Rule of Court No. 333 has been promulgatedj

—Ed.]

D 2

36

i8'7- also a member, respecting the re-construction of the Alfred

May 15. Pass, situated within the district, and which had beenWalter !)s. injured by the recent rains. In this letter was the followins;Powrie. IPparagraph referring to the plaintiff :—

•

" The behaviour of llr. Walter, which is noticed by us, only endangers

his chance of being returned at the next election, for since llr. Molteno

has guaranteed him a salary in Parliament, he votes blindly on every

question (' om het hoscK), and is at present more a servant of the House,

of Assembly than our representative."

A letter in the Dutch language, and containing also the

words " om het bosch," had previously appeared in another

newspaper, the Volksblad, pubhshed in Cape Town, and not

in any way connected with the defendant. The plaintiff

demanded an apology for the publication from the de-

fendant, who rephed that he wished first to consult the

writer of the letter. Defendant afterwards wrote saying

that both the writer of the letter and he himseK failed

to see that the plaintiff had been hbelled. The plaintiff

thereupon instituted an action of damages for defamation,

and in the umuendoes stated that words given above im-

phed that he had been appointed to a salaried office, viz.,

that of a Chairman of Committees of the House of

Assembly, at the instance or recommendation of Mr.

Molteno, the then Premier, and in consideration thereof

had dishonestly, dishonourably, and corruptly, and dis-

regarding the interests of his parhamentary constituents,

surrendered his free judgment to vote in the House onmatters under discussion therein, under the improper

influence and at the direction of Mr. Molteno ; and further,

that the plaintiff had, in his conduct in Parhament since

he accepted the said office, behaved himseK more as a paid

member of the House of Assembly than as an independent

member ; and by his conduct had endangered his chance of

being re-elected.

The defendant pleaded the general issue ; and then

specially that the letter pubhshed by him was a translation

of one previously pubhshed in the Volksblad newspaper,

and that this translation had been inserted by' the defendant

in the Mossel Bay Advertiser without mahce or intention to

injure.

The plaintiff excepted to the special plea, and on the

hearing the special plea was withdrawn, leaving only the

37

general issue on the record. The publication and the i877.

1 1 . -, Feb. 20.

correspondence were admitted. May is.

No vivd voce eA?idence was siven on either side. In waiters.Powrio

answer to inquiries from the Court, the official interpreter

stated that the words " om het bosch," UteraUy " about the

bush," might be taken to mean that plaintiff voted in-

sincerely, or unconscientiously, or with ulterior purpose.

Jacobs, A.-G., (with him Upington), for the plaintiff,

submitted that the words were HbeUous, and bore the

meaning attached to them by the innuendoes.

[FiTZPATRiCK, J. : Is there not a previous question, that

the words are a fair comment upon the public acts of a

Member of Parhament ? ]

There was no plea to that effect, the defendant having

reUed solely on the general issue, which, as the pubhcation

was admitted, must be taken only to deny that the words

were, defamatory. Words affecting a person in his office

or business were certainly actionable, and this principle

extended to the position of Member of Parliament.

[FiTZPATRiCK, J. : Is it not a legitimate object to try andturn a man out of Parliament ?]

But the words here imply a want of integrity. (Starkie

on Libel and Slander, 3rd ed., pp. 116, 117, 176, 245, 256;

Onslow vs. Home, 3 Wils. 186). According to Blackstone

a pubhcation displaying the plaintiff in an odious or

ridiculous Ught, and thereby tending to diminish his repu-

tation, was actionable (Com., vol. 3, p. 125). Van der

Linden (p. 250) was somewhat vague, but stated that all

acts or words intended to injure a person's character were

actionable. Vo^ (47, 10, 1,) shewed that contumehous

words gave a right of action. The law of Scotland madeanjrthing defamatory the foundation of an action. In

Comyns' Digest (tit. Libel, A.), a libel was defined to be a

contumely or reproach.

[De Villiers, C.J. : Starkie, at p. 246, seems fairly to

draw the distinction. He says that the patronage of Parha-

ment as bestowed upon the supporters of the Ministry, is

matter of public interest, and may be made the subject of

fair comment. But if the writer assert that a certain

Member of Parliament had bargained to seU his vote upon

a corrupt contract, or that a member would not have voted

38

reb'^lb°^ spoken as he did but for a corrupt understanding that he

May 15 . should receive a reward, such would not be excusable as fair

Walter vs. comment. 1Powrie. "

It was not so much the actual words used m this case,

but it was the insinuation of corrupt motives, and that

plaintiff voted not as best for his constituents, but as desired

by the Premier in return for his appointment to office.

The libel was not so much a public comment, as an ex-

pression of a private individual's complaint, in whichattention was called to a particular vote given by the

plaintiff in consequence of his appointment, in consequence

of which, in the opinion of the private individual, he ought

not to hold the confidence of his constituents. An apology

or retractation of the insinuation had been asked, but refused

by the defendant.

Cole (with him Maasdorp), for the defendant, said there

was no wish to say one word against the plaintiff, beyondthat he was too thin-skinned and iU-advised. The words

were not defamatory, and did not necessarily bear out the

innuendoes. As there was no evidence led, the words alone

must be looked at. Any intelligent foreigner reading the

words and the interpretation put upon them in the

pleadings, would say our language was the most compre-

hensive in the world. Voet (47, 10, 20) laid it down that

where the words used were ambiguous, the most innocent

construction was to be put upon them by the Court. Here

there was no imputation of corruption. If these words were

actionable, it would be actionable to say that the Speaker

was more a paid servant of the House, than the represen-

tative of his constituents. To say that a member whopresided over the Committees voted " round the bush,"

imphed only that he was not actuated by fixed principles or

party considerations.

De Villiees, C.J. : This is one of those cases that comeso very closely if at aU within the definition of a libel,

that it will be better if the Court takes a little time to

consider.

Cur. adv. vult.

Posted (May 15),—

39

De Villibks, C.J., in giving judgment, said : This is an Jt^\oaction for damages for an alleged libel published in the May is.

Mossd Bay Advertiser, of which paper the defendant is the waiter»».

editor and publisher. The declaration alleges that the

plaintiff is a Member of the House of Assembly of this

Colony, and that the defendant has pubhshed of and con-

cerning him the following false, scandalous and malicious

words, viz. :" The behaviour of Mr. Walter, which is noticed

by us, only endangers his chance of being returned at the

next election, for since Mr. Molteno has guaranteed him a

salary in Parliament, he votes blindly on every question

(' om het hosch '), and is at present more a servant of the

House of Assembly than our representative." The question

for the Court now to consider is, whether these expressions,

or any one of them, constitute a libel for which the plaintiff

is entitled to sue. For myself, I do not feel inclined to

encourage the bringing of actions of this kind ; but at the

same time when a case does come before the Court in whichit appears that the words are in strict law libellous, it is

the duty of the Court to give judgment accordingly, what-

ever may be its own opinion of the expediency of the law.

There is no doubt there is far greater" latitude allowed in

criticising the acts of pubhc men, than would be allowed in

the case of private individuals ; but at the same time no

writer is allowed to go beyond the limits of fair commentand bond fide criticism. Whenever any writer goes beyondthat, and imputes even to a pubhc man base or sordid or

corrupt motives for his acts, he is bound to prove the truth

of his charges, and if he fails the Court is bound to give

some damages. If such a charge against a public man ii?

proved to be true, the defendant would not be liable because

it would be clearly for the pubhc interest that it should be

publicly known. The question now is, has the writer gone

beyond the hmits of fair criticism, or has he used ex-

pressions which impute base and sordid motives ? Taken

by itseff there is not one of the expressions used which can_be

said to be defamatory in law. It would not be libellous to

say of a Member of Parhament that he votes bhndly, or

that he is at present more a servant of the House than a

representative of his constituency. But the question is

whether the effect of the statement that he votes blindly,

40

1877 coupled with the allegation that the Premier had guaran-

May 15. teed him a salary, is not an imputation of sordid motives.

Walter MS. What would any one reading these sentences gather fromthem ? Would it not be that they imply that there was a

corrupt bargain between the Premier and the plaintiff that

in consideration of a salary guaranteed to the latter he

should close his eyes and vote blindly, independently of

the true merits of the question before him, and that he wasswayed by the salary he received instead of acting andvoting conscientiously ? That no doubt would be the im-

pression upon any fair-minded person reading the article in

the paper. It was said that the allegation that plaintiff

voted blindly was modified by the words " om het bosch,"

which immediately followed. But the answer to that is,

that the person who read the Enghsh words might be

ignorant of Dutch, and would not know what was meant bythose words. And moreover the words " om het bosch

"

themselves would imply that plaintiff voted not honestly,

but with some ulterior object. I am now iniormed by the

Interpreter that he does not quite adhere to the meaninghe gave these words at the trial, but rather that he thought

the expression was synonymous with the word " dodgingly,"

whatever that may mean. If it means anything it impUes

want of honest purpose. As to the expression " more a

servant of the House of Assembly than our representative,"

I must confess I do not see anything hbellous in them, for

to a great extent a Chairman of Committees is necessarily

a servant of the House, just as the Speaker is. But I feel

bound to agree with my Brethren that the previous wordsdo impute and were intended to impute a base and sordid

motive to the plaintiff, and that the defendant was not

justified in pubhshing such an imputation in his paper

unless he could prove it. It is not clear that, even underthe Enghsh law, the words would not be held to be hbellous.

In Campbell vs. Spottiswoode (3 B. & Sm., 769), Lord Chief

Justice CocKBURN laid down that a " hne must be drawnbetween criticism upon pubhc conduct, and the imputation

of motives by which that conduct may be supposed to beactuated. One man has no right to impute to another,

whose conduct may be fairly open to ridicule or disappro-

bation, base, sordid, and wicked motives, unless there is so

41

much ground for the imputation that a jury shall find, not ^,1877.^

only that he had an honest behef in the truth of his state- May is.

ments, but that his behef was not without foundation."^'Jj^'jg'-And again :

" It is said that it is for the interests of societythat the public conduct of men should be criticised withoutany other hmit than, that the writer should have an honestbelief that what he writes is true. But it seems to me thatthe public have an equal interest in the maintenance of thecharacter of pubhc men ; and public afifairs could not beconducted by men of honour with a view to the welfare of

the country, if we were to sanction attacks upon them,destructive of their honour and character, and made withoutany foundation. I think the fair position in which the lawmay be settled is this : that where the pubhc conduct of apublic man is open to animadversion, and the writer who is

commenting upon it makes imputations on his motiveswhich arose fairly and legitimately out of his conduct, so

that a jury shaU say that the criticism was not only honest,

but also weU founded, an action is not maintainable. Butit is not because a public writer fancies that the conduct of

a public man is open to the suspicion of dishonesty, he is

therefore justified in assailing his character as dishonest."

In the case of Seymour vs. Butterworth (3 F. & F. 372), the

same learned Judge made the following apposite remarks,

speaking of Members of Parhament taking ofiice :" Not

only was this a fair matter for discussion, and within the

province of a public writer, but a public writer was fairly

entitled, if in his opinion such a course of proceeding wasdetrimental to the independence of Parliament, and to the

independence of the representatives of the people, to ani-

madvert with severity upon the conduct of those who gave

and of those who received such patronage. But if he wentbeyond this, and asserted that a Member of Parhament hadbargained to sell his vote upon a corrupt contract, or that a

member would not have voted or spoken as he did but for

a corrupt understanding that he would receive a reward, it

became a most serious charge, and one which no manwriting, whether in pubhc or private, should venture to

make against another." In this case no attempt has been

made to prove the truth of the imputation. The hbel is

not by any means a gross one, and I am not inclined to

42

1S77. award more damages than would barely suffice to pay theFeb. 20

Powrie.

May 16.' plaintiff's^costs between attorney and client. Under the

Waitertis.' ciroumstances I think £5 damages will be sufficient, with

costs.

Dbnyssen, J. : I am of the same opinion as to the

amount of damages, as I do not think plaintiff's character

has suffered from this attack. Mr. Walter might safely

have passed by the letter without notice. The words used

are, however, clearly libellous. To accuse a member of

ParHament of voting " blindly," in consequence of receiving

a salary, means that for that consideration he closes his eyes

and votes without any regard to the interests of his con-

stituents ; and that he votes " om het bosch," which has been

translated " dodgingly," or " manceuvringly," means that

he votes in a way contrary to what he honestly beheves he

ought to vote.

FiTZPATBiCK, J., concurred.

Judgment accordingly for plaintiff, for £5 damages andcosts.

[plaintiff's Attorneys, Faiebkidge, Akdekne & Soanlen."!LDefendant's Attorney, C. C. de Villieks. J

LippERT & Co. VS. Van Rensbueg.

Surety.—Cession of action.

Provisional sentence granted on a summons on a mortgage bondagainst a surety who was also bound as co-principal

debtor, though the summons did not tender cession ofaction against the debtor.

1877.^- ^- "^^ ^^^ Rensberg executed a mortgage bond for

MajMs. £750 in favour of plaintiff, to which bond defendant bound

"T.'vfn^"'lii™self as surety and co-principal debtor. The plaintiffs

Eensburg. gave notice caUing up the bond, when the debtor W. P. J.

van Rensberg surrendered his estate. The defendant wasthen summoned for the amount of the debt.

43

De Villiees, C.J. : Plaintiffs do not tender cession of

action in their summons. Are they not bound to do so ?

Jacobs, A.-O., for the plaintiffs, said the original debtorwas now insolvent, and the surety could only prove on his

estate. The defendant had bound himseff as co-principal.

Moreover, plaintiffs were not bound to offer in the summonscession of action, but it would be sufficient to make suchcession on being thereunto required [Horn vs. Loedol^ et

Uxor, 1 Menz. 403).

Defendant made default.

1877.May 15.

Lippert & Co.va. Van

Eensburg.

The CouET granted provisional sentence as prayed.

Plaintiff's Attorneys, Fazebkidhe, Akdekne & Scanlen.J

ROBEETSON VS. WiLKINSON.

Arrest.

The arrest of a debtor about to leave the Colony is for the

purpose of enabling the plaintiff to obtain judgment, whichbeing obtained the debtor is discharged from custody.

The defendant, being about to leave the Colony for

Mauritius, the plaintiff obtained his arrest under the 8th

Rule of Court, on a claim for £179 due upon an acknow-ledgment of debt.

The defendant being brought up in custody, and acknow-ledging the debt, the Cottet gave judgment for plaintiff

for the amount and costs.

1877.May 15.

Robertson V8.

Wilkinson.

Buchanan, for the plaintiff, prayed further the confirma-

tion of the arrest, in order that the plaintiff might beenabled to bring the debtor to terms to satisfy the

judgment.

De Villiees, C.J. : The arrest was made in order to

enable plaintiff to obtain judgment for his claim ; and nowthat has been obtained _there is no longer any reason for

44

1877. the defendant's detention. Let him be released fromMay 16.

custody.Kobertson vs.

Wilkinson.

Denyssen, J., and Fitzpateick, J., concurred.

Judgment accordingly for plaintiff, and defendant dis-

charged from custody.

[Plaintiff's Attorney, Moobe.]

Shields and Van Rooyen vs. Wehmbye.

Costs.— Witness.—Attorney.


witness at the hearing of a case in the Circuit Court, en-

titled to witness expenses in addition to costs payable to

him as attorney in the case.

1887. The plaintiffs sued the defendant in the Circuit CourtMay 15.—

' for George. Mr. C. C. de VUhers, who resided and prac-

Eooyenw. tised in Cape Town, was plaintiffs' attorney. CounselWehmeyr. r ' ± */

advised that he was a necessary and material witness in the

case, and he was subpoenaed and attended the Circuit Court

accordingly. Judgment was given for plaintiff with costs.

Mr. de VUliers in his bill of costs charged his costs as

attorney in the suit, and also charged £34 14s. for traveUing

expenses to the Circuit town, detention thereat, and personal

allowance, as a witness, which charge the Taxing Officer

allowed. Defendant brought the taxation in review.

Buchanan, for defendant, contended that the attbrney wasnot entitled to be paid twice over. If Mr. de VUliers wasentitled at all to an allowance as a witness, as he was in

Court as attorney he ought at most to be paid as anordinary town witness, and not to charge travelling

expenses.

Upington, for the attorney, submitted that as Mr. deVilliers was a necessary and material witness, and had beensubpoenaed as such, he was entitled to all his expenses.

45

De Villiers, C.J. : An attorney in a case, whether in 1887.

town or on circuit, is never allowed qua attorney both feesMayj^s.

and travelling expenses. But an attorney who goes down ^''Rooy™'^!*''

to the country as an indispensable witness necessarily incurs w^ii™<'yr-

certain expenses, which he is entitled to recover fromsome one, and in this case it is the defendant. The twothings are entirely separate. There is no question raised

that the attorney was not a necessary witness. The apph-

cation must be refused.

Denyssbn, J., and Fitzpatrick, J., concurred.

Application refused accordingly, with costs.

("Plaintiffs' Attorney, 0. 0. DE ViiLiEKS."!LDefendant's Attorney, De KORTE- J

Steenkamp vs. Krfger.

Act No. 15, 1855.

—

Sale of landed property to agent

of undisclosed principal.—Costs.

A private sale of land to a person as agent for an undisclosed

principal, is null and void.

Where judgment was given against defendant in the Court

below with costs, ordering him to pass transfer, and on

appeal by defendant the judgment was varied by adding

a condition that plaintiff was to give security over the

property for a debt due by him to plaintiff, although the

judgment against defendant for costs in the Court below

was sustained, the defendant was allowed his costs of

appeal, as he had obtained a substantial alteration of the

judgment.

Plaintiff Steenkamp sued defendant Kruger in the

Circuit Court for Cradock, in an action to compel transfer Mayi'e

of a certain erf of ground sold for £25 by defendant

to plaintiff on the 14th January, 1874. The defendant Kruger.

pleaded that the plaintiff was not entitled to transfer, as

the property did not now belong to him. Further, that

subsequently to the said sale defendant advanced £101 li5s.

1877.1617.

46

1877. to plaintiff upon condition that plaintiff should hold the

„ 17. title deeds until the advances were repaid ; that as de-

steenkamp !;5. fendant was unable to repay these advances, it was agreed

in May, 1874, that the land and buildings erected byplaintiff thereon should be re-sold to defendant for £350,

which sum had been duly paid. In reconvention defendant

claimed the right to retain the property under the contract

of re-sale. The plaintiff replied that the alleged agreementof re-sale was null and void under the 8th section of ActNo. 15, 1855, as the defendant had not professed to pur-

chase for himself in his individual capacity, nor was the

name of the principal, for whom the purchase was made,disclosed.

At the trial it was shewn that as plaintiff could not repay

advances amounting to over £101 made to him by defendant

for the purpose of enabling plaintiff to build on the erf sold

to him, which buildings had not yet been completed, it wasagreed in writing between plaintiff and defendant " q.q.,"

that plaintiff should complete the house, and that defendant

q.q. should take over the place on giving credit for the

£101, and delivering to plaintiff a wagon and oxen valued

at £142 and a promissory note for the balance, making up£350 in aU. Part of the moveable property was received byplaintiff and also a promissory note signed by one Eager

and endorsed by defendant. Plaintiff did not complete the

house. The exact nature of the arrangement between de-

,

fendant and Eager was not clear, but it was alleged to be a

contract of sale. It transpired, also, that Eager had again

sold to one Walter, now insolvent. The property remained

registered in defendant's name. The Circuit Judge gave

judgment in convention for plaintiff for transfer as prayed,

and against the claim in reconvention, defendant to pay the

costs. The defendant now appealed.

Jacobs, A.-O. (with him Leonard), for the appellant,

claimed that he was entitled to redress, he having given

valuable consideration to plaintiff.

Cole (with him U'pington), for the respondent, supported

the judgment.

De Villiers, C.J. : There can be no doubt in this case

as to the original sale by the defendant to the plaintiff ; and

47

there can also be no doubt that in January, 1874, there wasjjay'ie.

an agreement come to between the parties, that the sum of ^ ''-

£101 advanced by the defendant to and due by the plaintiff stemkampi.«.

to the defendant, should be secured upon the property.

There can be no doubt, too, that in May, 1874, a re-sale

was attempted to be made between the parties ; but the

question at issue is now whether this was really a sale to

defendant in this case, or whether it was a sale to a third .

party. In my opinion it was not a sale to Eager, nor a sale

to Kruger. The policy of the Act is clearly to prevent sales

of this kind, in order that the revenue shall not be de-

frauded of transfer dues. If such sales were allowed, it

would be easy for speculators to buy land and not disclose

their principals at the time of purchase ; then to find a

purchaser at a profit, to have transfer made from the original

seller to the purchaser instead of transfer duty being paid

by the speculator as the intermediate purchaser ; so the

law, to prevent frauds of this kind, says it does not recognise

such sales at all ; it considers a sale where the purchaser

does not profess to purchase for himself, and does not dis-

close the purchaser, as a fraud upon the revenue, and as

therefore null and void. The sale of May, 1874, therefore,

was null and void under the Act of 1855, and everything

done under that sale was also void. * If in consequence of

that sale, the defendant had been induced to hand over to

the plaintiff promissory notes for £105, there was no con-

sideration for that, and the parties fell back upon their

original position, which is this, that in January, 1874, the

plaintiff had promised and undertaken that this money shall

be secured upon this land. Then the Attorney-General

argued that the defendant had paid other monies and given

a wagon and oxen of the value of £142. Under this sub-

sequent agreement of sale, it may be that the defendant

wiU have a right to bring an action for this amount of

£142, but he has not in his claim in reconvention broughtthis action, and the Court cannot take this into consideration.

There is no agreement that this amount of £142 was to besecured, but there was such an agreement as to the £101,

and the agreement of January, 1874, is clear. Now wherea party comes into Court to claim specific performance of a

contract to give transfer, he is bound, before he can obtain

that transfer, or before he can obtain specific performance,

48

1877 himself to be ready to perform his part of the contractMay 16. ^ X r

.. 17. which he has antecedently made. It is quite competentsteenkamp t)s. for the Court, in giving judgment compeUing specific per-

formance, to add to that a condition that plaintiff on his

part should perform the agreement he had undertaken to

perform. The Judge ought to have made that a part of his

order, namely, that a condition of giving transfer should be

that the plaintiff should either before the transfer is passed

pay this £101 with the interest mentioned in the documentof May, 1874, or else immediately after transfer, pass a

mortgage for the amount upon this property. I there-

fore think that the judgment of the Court from which the

appeal comes ought to be varied to that extent. Thatjudgment was for unconditional transfer with costs. I do not

think that this Court should now vary the order as to costs

in the Court below, because the defendant had put in a

claim in reconvention, arid was properly unsuccessful in that

case. The plaintiff in the Court below was virtually suc-

cessful, and is therefore the party entitled to his costs.

With regard to the costs of the appeal, it appears to methat the appellant has obtained a substantial variation of

the judgment in the Court below, and he is now entitled to

his costs of appeal.


Judgment in Court below varied accordingly, with costs

of appeal.

rAppellanfs Attorney, Van Zyl. 1LBespondent's Attorneys, Fairbeidge, Akdeene & ScanlenJ

Caffyn Bros. vs. Lekhkaj.

Arrest.—Eule of Court No. 8.

—

Departure from Colony.

The defendant, a Parsee merchant who had brought goods to

the Colony for sale, was arrested under the 8th Rule of

Court, he being about to depart from the Colony without

satisfying a claim for £36 for rent. The defendant alleged

he was leaving only for a temporary purpose, with the in-

49

tention of shortly returning, and that he was leaving in

the Colony goods of the value far exceeding 'plaintiffs

claim, which he disputed. The Court refused to set aside

the arrest.

The plaintiffs, Caffyn Bros., had leased certain premises i877.

for six months, at £6 a month, to the defendant, a Parsee —

'

merchant who had brought a quantity of merchandize to the Lekhiaj.'

Colony for sale. A dispute arose between the parties, anddefendant vacated the premises and stored his goods else-

where in Cape Town. The defendant was preparing to

visit Zanzibar, where he had a business, when plaintiffs hadhim arrested under the 8th Rule of Court. Plaintiffs

claimed the fuU sum of £36, though only three months of

the period of alleged lease had expired.

Upington, for the defendant, moved for the dissolution of

the arrest, on the ground that there was no debt due, andthat defendant would be absent only temporarily, and wasleaving within the jurisdiction goods far exceeding in value

the amount claimed.

[De ViLLiBKS, C.J. : We cannot now try an aifidavit

whether the plaintiffs wiU succeed in their claim or not.

They allege that more than £15 is now due to them.

J

Upington contended that the defendant not having anyintention to abscond, and leaving ample property behind,

could not be arrested. He cited Van der Linden, p. 430

;

Van Leeuwen^s Com., Eng. trans., p. 543 ; Peckius, p. 764.

Jacobs, A.-G., for the plaintiffs, supported the arrest, the

requirements of the 8th Rule of Court having been com-phed with {Tucker vs. Roberts, 3 Menz., 130 ; Master of the

Supreme Court vs. A. B., 3 Menz., 134 ; Witham vs. Venables,

1 Menz., 391 ; Re Solomon, Cape Town Mail newspaper,

15th March, 1851 ; Re Joseph, Advertiser and Mail news-

paper, 23rd July, 1864).

Upington rephed.

De Villiees, C.J. : This is not a case in which anarrest is apphed for after issue of summons, but an arrest

under the 8th Rule of Court. The requirements of that

Rule have been satisfied, and it is perfectly clear that the

defendant is about to remove^i or is making preparations to

Vol. VIL—Pakt L E

50

mIVu.remove, trom the Colony. This arrest was made under that

caffyiTB^os. vs.^^^' ^^^ ^^^ by virtue of the common law, on the ground

Lekhraj. that the defendant was suspectus fugce. The defendant maybe able to substantiate his defence at the trial, but atpresent the plaintiffs have shewn that they have cause ofaction for a sum of £15 and upwards. Costs wiU be costsin the cause, and the parties must go to trial this term.


AppHcation refused accordingly.

rPlaintiffs' Attorneys, Fairbmdge, Ardeene & Scanlen. 1

LDefendant's Attorney, Moore. I

Pereins' Tktjstee vs. Bombail.

Appeal.—Order of Judge in Chambers.—Eastern

Districts Court.

One of the Judges of the Eastern Districts Court, sitting in

Chambers, set aside an arrest, whereupon the plaintiff

appealed to the Supreme Court. Held,

—

That the appeal

in the first instance was to the Eastern Districts Court.

1877. The plaintiff sued out, in the Eastern Districts Court,

May'iV. a writ of arrest under the 8th Rule of Court, against the

ferrinFrrusfec defendant. The defendant, on being arrested, moved avt. Bombail.

j^jjgg of the Court sitting in Chambers at Grahamstown,

who after hearing affidavits dissolved the arrest. The

plaintiff thereupon appealed to the Supreme Court.

' Upington, for the defendant, objected that no appeal lay

to this Court, first, because the dissolving of the arrest was

not a final order or decree, and next, that an appeal, if any,

lay in the first instance to the Eastern Districts Coint.

Jacobs, A.-G. (with him Forster), for the plaintiffs, sub-

mitted that a Judge in Chambers sat as a Judge of the

Supreme Coiurt. The Eastern Districts Court consisted of

only two Judges, and it was useless to appeal to themagainst the order of one of themselves.

51

The CoTTRT ordered an enquiry to be made whether the i877.

Judge was sitting in Chambers merely or whether he was May'17.

exercising the powers of the full Court vested in a single Pemns' Trustee

Judge during vacation ; and also as to whether it was the

practice of the Eastern Districts Court to review orders

made in Chambers.

The Registrar reported that the Judge had sat simply as

a Judge in Chambers, and that an appeal lay to the full

Court.

The Court referred plaintiff to the Eastern Districts

Court in the first instance. If he was not satisfied with the

decision of that Court he could then appeal to the SupremeCourt.

Application refused accordingly, with costs.

rPlaintifla' Attorneys, Faibbwdge, Arderne & Scanlen.1LDefendant's Attorneys, Reid & NEPHEWS. J

Van Niekeek vs. Ratjbenheimer's Executrix.

Will.—Execution.— Witness.

The brother of the testator held to he a competent witness to anunderhand will.

The plaintiffs, heirs ad intestato of the late Mr. Rauben- i877.

heimer, sued the defendant, the widow and alleged executrix ^^ '

testamentary of his estate, to have a certain mutual will ''"uauben-**'

made by Mr. Raubenheimer in his lifetime with the de- '^''^Sru^^''"

fendant set aside and declared nuU and void, on the groundthat one of the two witnesses to the will was a brother

of the testator, and thus by law was incompetent to attest

the said wUl. It was admitted that the will, which was a

non-notarial one, was in other respects duly executed.

Buchanan, for the plaintiffs, referred to Van Beenen vs.

Board of Executors (6 Buch. S. C. Rep., 1876, p. 44), where

a brother of the testator was declared to be an incompetent

witness to a notarial wiU. In Le Sueur vs. Le Sueur

E 2

52

1877. [ib., p. 155), however, it was intimated that this decision

-— ' referred only to notarial wUls, and that the Court wouldRauben- ' require very strong authority to be shewn before it would

lieimer's Exe-j- »/ cj t/

•jutrix. ' set aside a non-notarial will merely because one of the

witnesses was within the fifth degree of consanguinity. Onprinciple it might well be contended that an incompetentwitness to a notarial will should also be incompetent to anon-notarial, as the notary and two witnesses were considered

equivalent to the seven witnesses required by the old law.

Tennant's Manual and the authorities cited, such as Voet,

28, 1, 5, and 22; Leyhrechf, Not. Ambt., 1, 19, 12; Huber,

2, 12, 26, referred to notarial wills, but Grotius, 2, 17, 12,

inferentially supported the view that a brother was not acompetent witness to a wQl, though brothers and a father

and son were competent to witness wills made by third

persons. Neither the Wills Acts of 1874, or of 1876, apphedto this case.

Upington appeared for the defendants.

De Villiees, C.J. : At first sight it might appear as if

this case was governed by our decision in Van Beenen's

case, but it is not so, as that decision depended on the

rule of law which required in the execution of any no-

tarial documents that neither the notary nor witnesses

should be nearly related to the appearer. In Le Sueur's

case this distinction was clearly pointed out, as there an

underhand wiU witnessed by a nephew was held good,

though such a witness would not have been a competent

witness to a notarial instrument. The same principle which

justified the Court in deciding not to set aside the will in

Le Sueur^s case, will justify the Court in supporting the

will now before us. The judgment of the Court wiU there-

fore be for the defendant, with costs.


Judgment accordingly for the defendant, with costs.

CPlaintiffs' Attorney, 0. C. BE Villieks. TDefendant's Attorneys, Tkedqold & HuiiJ

53

MeIRING vs. LlEBENBEHa.

Magistrate's Court.—Service of Summons.—Bute No. 10.

Where the defendant resided twenty-four miles from the place

of holding the Magistrate's Court, Held,

—

That a sum-mons had been duly served where four days clear elapsed

between the day of service and the day of hearing.

Two summonses for debt were sued out against the de- J^'''[%

fendant in the Magistrate's Court for Murraysburg, one at -—the instance of Meiring and the other at the instance of Liebenterg.

Merrington and Rademeyer. The summonses were served

on the 30th January, at defendant's residence at -Witte-

klip, and called upon defendant to appear on Monday,the 5th February, at 10 o'clock. When the cases were

called on, defendant's agent pleaded short service. TheMessenger of the Court deposed that the distance of de-

fendant's residence from the place of holding the Court

was twenty-four miles, and that the time hitherto allowed

for service of summonses at Wittekhp had been five clear

days. The Magistrate thereupon sustained the defendant's

plea, with costs. The plaintiffs now appealed.

Jones, for the appellants, contended that the service was

good under the 10th Rule of the Magistrate's Court, which

required forty-eight hours' notice where the defendant

resided within five miles of the Court, three days for a

greater distance than five mUes and not exceeding ten

miles, and so on, one day in addition to forty-eight hours

for every ten mUes of distance.

Buchanan, for the respondent, submitted that the Rule

required three days' notice in addition to the forty-eight

hours, where the distance exceeded twenty mUes and did

not exceed thirty miles.

The CouKT held that there had been sufficient notice

given, and allowed the appeals, with costs.

rAppellants' Attorney, J. I. DE VlIIIBBS."!

LllespoEdent's Attorney, Van Zyl. J

54

Tesselaar's Tetjstee vs. Blanckenbeeg's ExecutorsAND Mrs. Tesselaar.

Husband and Wife.—Insolvency.—Set-off.—Community.

A bequest to a wife married in community, of property as" her free and own property, without any deductions," is

not a settlement upon the wife to her separate use ; so as

upon the insolvency of the husband to deprive the trustee

of the property for the benefit of his creditors. Theexecutors of the testator are entitled, notwithstanding

the words " without any deductions," to set off against the

trustee's claim to the property, a debt due by the insolvent

to the testator's estate.

1877. The plaintiff was the trustee of the insolvent estate ofMay22. ji_ ^ Tesselaar. The first defendants were the executors

Smfes' testamentary of the estate of the late J. G. Blanckenberg,

Sutorf'ind and the second defendant, Mrs. Tesselaar, was the wife ofMrs. Tesselaar. ^]^q insolvent.

The facts were admitted on the pleadings. By wiU dated

16th August, 1872, Blanckenberg instituted his grandson

Rossouw in his legitimate portion subject to collation, andby way of praelegacy he bequeathed to his two daughters

Susannah (married to Kotze) and Corneha (married to the

insolvent Tesselaar), the difference between the grandson's

fihal and legitimate portions, which said legacy the testator

directed should be enjoyed by his daughters as free and

own property without any deduction, nor should the same

in any respect be brought in collation or computation with

their inheritance. The testator then appointed his said

daughters and a granddaughter to be his heirs. By subse-

quent codicils the shares of the heirs were altered as

between themselves, but not affecting this case. Blanck-

enberg died on the 3rd October, 1875. On the 1st

November, 1875, the estate of Tesselaar, who had been

married in community of property to testator's daughter

Cornelia, was sequestrated as insolvent. The plaintiff, as

trustee of the insolvent estate, claimed to be entitled to

be paid the share of the praelegacy and of the inheritance

coming to insolvent's wife out of Blanckenberg's estate.

Blanckenberg's executors pleaded that Tesselaar and his

insolvent estate were indebted to Blanckenberg's estate in

55

the sum of £27,000, which sum far exceeded the amount of ,i877.May 22.

praelegacy and inheritance coming to his wife ; and they —-,

claimed to be entitled to set off and compensate such amount Trustee w.

against plaintiff's claim. There was also a claim in re- Executors and. . , Mrs.Tesselaar-

convention for the said £27,000.

Mrs. Tesselaar pleaded that as the testator's will provided

that the praelegacy should be held and enjoyed by her as

free and own property without any deduction she wasentitled to receive her share of the prselegacy free andunincumbered.

Jacobs, A.-G., for the plaintiff, contended that the in-

solvent estate was entitled to the benefit at any rate of

the prselegacy, if not also of the inheritance. At the time

of the making of the wUl Tesselaar was indebted to the

testator, and the testator directed that the prselegacy wasnot to be subject to collation. The marriage being in

community, the subsequent surrender of the husband's

estate entitled the trustee to claim what the wffe could

herself have claimed. To allow Tesselaar's debts to be

set off, would be to contradict the will. The words used

in the will did not constitute the prselegacy the wife's

separate property as against her husband. The marital

power of the husband could not be so excluded. {Jarman

on Wills, 2nd ed., vol. 2, p. 19, n. ; Massy vs. Rowen, L. R.

4 H. L. Gas., 288). A prselegacy of itself tended to shewthere should be no coUation. (4 Burge, p. 687).

Cole, for the first defendants, contended that in this

triangular duel the executors of Blanckenberg were en-

titled to succeed. The testator's object was to keep every-

thing he could out of the hands of his grandson, and to

benefit the daughters to the fullest extent. Supposing that

the bequest had been to the wife as her own individual

property, so that only her receipt would be good, still

she being married in community would be liable for her

husband's debts. The Attorney-OeneraVs contention was

unsound, for it amounted in effect to a claim that the

wife should be held liable for her husband's debts to aU

the other creditors except Blanckenberg' s estate.

Maasdorp, for the defendant Mrs. Tesselaar, supported the

view that the wife was entitled to the prselegacy free from

deduction of her husband's debt to Blanckenberg. It was

56

May"'2. ^ Special gift to her and could not be attached (1 Burge,

TesSTar-s P" ^^^ ' ^osman VS. Trustee of Bosnian, decided in 1854*).

BiM™'enberg'a-^^^ testator's intention was to make separate provision

Jte! TesseiaM*^°^ ^^ daughters, and not to allow his bequest to come into

community.

Jacobs, A.-G., for the plaintiff, rephed.

Db Villiers, C.J. : I think the victory in what hasbeen termed this triangular duel must be with Mr. Cole.

I have not the shghtest doubt but that judgment must befor the executors of Blanckenberg's estate. The trustees

of Tesselaar's estate claim that they are entitled to receive

the sum bequeathed to Mrs. Tesselaar. Now if Tesselaar

had not been insolvent he would have been entitled to this

money in right of his wife. The bequest was made to

her as her " free and own property "; and the use of the

words " without any deductions," were, I think, only usedto make assurance doubly sure. If Tesselaar had not be-

come insolvent there is no doubt that he could haveclaimed by virtue of the community this amount fromBlanckenberg's executors. But Tesselaar is no longer

solvent, and his trustee now claims in his stead. Mrs.

Tesselaar's claim cannot be sustained as against her hus-

band's trustee, for her estate, which is her interest in the

joint estate, is insolvent as weU as her husband's. Thecase of Bosnian vs. Michter—even if properly decided—is

not applicable, for there the testator had directed that the

interest should not be paid to any other person than the

plaintiff in that case. If Tesselaar had made the claim

upon the executors they clearly would have had the right

to compensate against such claim the amount due byTesselaar to them as representing Blanckenberg's estate.

The judgment of the Court must therefore be for the first

defendants, the executors of Blanckenberg's estate.


Judgment accordingly for the first defendants. By c on-

sent, costs to come out of the estate.

rPlaintifE's Attorneys, BERRANGi & SON. "I

LDetendants' Attorneys, NEISON ; De KoetiS.J

* Since reported as Bosnian vs. Bichter, 2 Searle's Eep., 78.—Ed.

57

Re Free Weights Association.

Act No. 3, 1873.

—

Trustee of Voluntary Association.

The Court refused to order the transfer of property belonging

to a voluntary association out of the name of a trustee

who had left the Colony, tvithout the knowledge or

consent of such trustee; but where such trustee had ap-

paerntly intended to abandon office, the Court under the

provisions of Act No. 3, 1873, appointed another trustee

in Ms place.

A voluntary association known as the " Free Wrights," 1377.

purchased landed property which was transferred to the ^wetsecretary and four other members as trustees for the as- RTvree

sociation. Circumstances afterwards rendered it necessary AsM^fitton.

to seU the property, but one of the trustees, named King,

had left the Colony without any intention of returning, andhis present whereabouts were unknown. The Registrar of

Deeds refused to act upon a power signed by the remaining

four trustees, whereupon they petitioned for an order of

Court directing the Registrar to pass transfer.

Db Villiees, C.J., referred to Act No. 3, 1873. TheCourt had power to appoint a new trustee, but where waspower given to order transfer out of the name of any person

without his knowledge or without his consent ? What wasthe nature of the voluntary association in this case ?

Cole, for the appKcants, said they were an association of

working men, who had formed a kind of mechanics' institute,

and had bought property with that view, but the scheme

had fallen through.

The CoUET suggested that the matter stand over for the

appointment of a new trustee.

Posted (June 1),

—

Cole, for the applicants, appHed under Act No. 3, 1873,

sections 1, 6, and 9, for the appointment of Drake, one of the

members of society, as a trustee in place of King. There

58

Miy'iB.^®^® ^'^ trust-deed or articles of association under which

Junei. the members could appoint a new trustee. King had

wrighlevidently intended to abandon his office.

Association.

The CoTJRT granted an order for the appointment of

Drake as trustee in the room of King, absent from theColony without intention of returning.

[Applicants' Attorneys, C. & J. Buissinnb.]

Enslin vs. Haupt.

Provisional sentence.—Non-negotiable document.

Though a promissory note in favour only of the payee, and not

payable to order, may be transferred by special cession, yet

the cessionary cannot stand in a better position towards the

debtor than the cedent would have done.

1877. Provisional sentence was claimed by the plaintiff Enslin

June 1.' upon the following document :

—

Enslin vs." Rustenberg, 27th Sept., 1876;

Haupt. " £200.

" Received from the young Mr. D. 0. Haupt, P. W.'s son, the sum of

£200, which I promise to pay at sight hereof, with the interest at six per

cent, per annum, after three months' notice. G. N. M. Haupt."-

Upon this document was written the following cession :

—

" I the undersigned do hereby cede and transfer to Mr. J. M. EnsUn,

J.'s son, or order, my right and claim to this document for the sum of

£200 sterUng, value received. D. O. Haupt."-

The defendant filed affidavits setting forth that when he

signed the document it was agreed that he should be en-

titled to set up any counterclaim he might have against

the cessionary D. O. Haupt, and that he believed that this

counterclaim amounted to about £150, but that he wasunable to ascertain the exact amount at present. Theplaintiff deposed that he gave full value for the documentwithout notice of any such agreement.

Upington, for the defendant, contended that as the docu-

59

ment was not' a negotiable one which would pass by mere J^''l-n

endorsement, the cessionary was bound to take it with aU junei.

its equities. Under EngUsh law, as the words " or order " Enaimss.

had been omitted, the instrument under no circumstances

was negotiable. He would not contend that with us a

special endorsement could not be made, but it could only

pass such a right as the holder possessed (Van der KeesseL

Th. 525.)

[De Villiers, O.J. : It is not necessary to argue that

point further.]

Jacobs, A.-G., for the plaintiff, referred to 3 Burge, p. 549,

and contended that this was not a case in which compensa-

tion could be set up. There was a distinct acknowledg-

ment of debt by defendant, against which was an indefinite

assertion of some counterclaim of " about £150." If he hadany such claim it might be set up in a reconventional form,

but here there was no claim in reconvention, only an oppo-

sition to judgment.

[De Villiers, C.J. : But there can be no reconvention

in a provisional case. If you go into the principal case it

may be set up.]

The law did not enable the defendant to make a claim

in reconvention a good defence. Moreover the plaintiff took

the cession without any notice of any such liability.

Upington, in reply, urged that as the counterclaim wouldextinguish the debt, provisional sentence ought not to be

granted.

De Villiers, C.J. : There is no doubt that by our law

the cessionary of a document of this nature cannot stand in

a better position than does the cedent ; and we must treat

this case as if the claim was made by the person in whosefavour the note had been made. The question is, would he

have been entitled to provisional sentence ? I do not think

that the affidavits are sufficiently clear and distinct as to

the alleged set-off to justify the Court in refusing judgment.

There is no statement of any specific amount due, and whenthe claim came to be examined into, it might appear that

it was very much less than "about £150." Defendant him-

self admits that there is at the least £50 owing by him onthe document. The defendant may bring an action for anyclaim he may have, or he may go into the principal case

60

sfe/L^^^ ^®* ^P * claim in reconvention. At present provisional

June 1." sentence must be granted.

Enslin vs.

Denyssbn, J., concurred.

' Provisional sentence accordingly, with costs.

rpiaiiitifl's Attorneys, B,edeiinghuys & Wesseis."!LDelcndant's Attorney, C. 0. de Villieks. J

Brinkman vs. Lindt.

Lease.—Condition in restraint of trade.—Stamp Act.—Penalty.

A condition in the lease of farms, that the lessor shall not opena shop ivithin six hours distance on horsebach of the pro-

perty leased, is a valid condition, the breach of which

would support an action of damages.

An agreement of lease not properly stamped may he received

in evidence in an action for breach of one of the conditions

of the lease, on payment of such penalty as the Court shall

fix. The payment of such penalty, however, does not have

the effect of stamping the document.

1876. This was an action for damages and for an interdict.

!fune^5.' The declaration set forth that by a written agreement

Erintoaujjs. dated 15th March, 1875, certain two farms were leased byLindt. defendant to plaintiff for five years, at an annual rent of

£75, upon certain terms and conditions, amongst others

that the defendant should not establish or erect any shop

or place of business within a distance of six hours on horse-

back round the said farms, and should appoint no one in

his stead for that purpose, yet that the defendant thereafter,

in September of the said year, established or erected and

thence hitherto has continued a shop or place of business

within the said Umit, to the great detriment and loss of the

plaintiff.

The defendant excepted to the declaration on the grounds,

first, that the term or condition of the contract referred to,

being in restraint of trade and unreasonable, was null and

61

void, and that the breach thereof afforded no ground ofjj^^'ig

action. And secondly, that the contract shewed that the Junej.

plaintiff had no interest in the enforcing of the said term or ^""S^fj""'•

condition, and could not therefore be damnified by the

alleged breach thereof. The defendant pleaded over the

general issue.

The copy of the contract annexed to the declaration set

forth that th'e defendant let to the plaintiff his two farms,

for a period of five years from the 1st August, 1875, at £75

per year ; that the defendant gave the plaintiff the right

of pre-emption of the farm of £1500 ; that the defendant

engaged not to establish or erect any shop or place of

business within a distance of six hours on horseback round

the farms, and should not appoint anyone in his stead for

that purpose ; and that the defendant let to the plaintiff

the said farms with the same rights and privileges as en-

joyed by him hitherto. The document contained certain

further conditions as to improvements, and as to the right

of grazing reserved to the defendant.

Buchanan (with him Leonard), for the defendant, con-

tended that the lessee's rights were hmited by the lease,

and that no injury could ensue to those rights by the open-

ing of any shop ; that the contended restriction was badas being too general in restraint of trade ; and that there

was no consideration for any such restriction.

Jacobs, A.-G. (with him Upington), for the plaintiff, were

not called upon.

The Court overruled the exceptions with costs, holding

that the restriction in question could be vahdly contracted

for, and that the agreement disclosed sufficient consideration

for the condition.

At the trial the plaintiff produced the original agreement,

and proposed to put it in evidence.

Buchanan, for the defendant, objected to the admissibility

of the document, on the ground that as it was a lease it

should have been stamped. If not written on stamped

paper Act No. 3, 1864, required an adhesive stamp to be

affixed and cancelled. By the 14th and 15th sections of

the Act after sixty-two days of the execution of the instru-

62

1876. ment the special direction of the Governor was required

June 6.' before the stamp could be cancelled.

Brinkmantjs. Jacobs, for the plaintiff, contended that the document

was admissible on the payment of such penalty as might be

fixed by the Court.

De Villiees, C.J. : There is no doubt that this docu-

ment should have been stamped as a lease. By the 18th

section of the Stamp Act, as more than sixty-two days have

elapsed, a penalty of not less than five times the value of

the stamp has been incurred. True, the Governor is to fix

the penalty, and his consent to the cancelling of the stamps

then to be affixed is required, but this consent is provided

for to protect the parties from being subject to this five fold

penalty every time the document is produced in Court. Bythe 12th section the Court can admit any unstamped in-

strument in evidence on payment of such penalty as the

Court may fix. The penalty the Court may so fix does

not, however, stamp the document. The document will be

received in evidence in this case on the payment of a penalty

of £5.

Evidence was given for the plaintiff of the establishment

by defendant of a shop within two hours' ride of the farms,

and of damage in trade sustained by the plaintiff in conse-

quence. No witnesses were called for the defence. Judg-ment was given for plaintiff for £200 damages and costs,

but no order was made for an interdict, the Court consider-

ing that the circumstances considered it unnecessary.

["Plaintiff's Attorney, P. DE VULIEKS."![.Defendant's Attorney, Van Zyi. J

Paterson vs. McLoughlin and Solomon & Co.

Defamation.—Trial by jury.—New trial.

In an action of damages for libel, the jury found for the de-

fendants. A new trial was granted, on the grounds first,

that the presiding Judge was not satisfied with the verdict ;

secondly, that the jury laid too much stress on the ex-

63

ternal evidence of want of malice, ana did not talce into

consideration the internal evidence furnished by the libel

itself ; and thirdly, that the jury were not unanimous in

their verdict.

The plaintiff Paterson, a merchant carrying on business J'^''h

at Port Ehzabeth and a Member of the House of Assembly, .. le-•" June 11.

sued the defendant McLoushhn, the editor of the Cape ,

—

Argus newspaper, and Saul Solomon & Co., the pubhshers McLougiuin

of the said paper, in an action for £10,000 damages for co.

libel contained in several editorial articles printed andpublished of and concerning him, from which newspaper

articles the plaintiff averred that the innuendoes to be drawnwere, first, that the plaintiff was a dishonest person, and not

fitted to occupy a position of trust by reason thereof;

secondly, that if he were Premier of the Colony he woulddishonestly make use of his position for the purpose of

furthering his personal and mercantile interests ; thirdly,

that he had dishonestly made use of knowledge acquired

by him as a Member of the House of Assembly, and byreason thereof had bought up an article upon which it wasproposed to increase the import duty ; fourthly, that he wasa dishonest promoter of financial institutions ; fifthly, that

as a local director he had wrongfully and dishonestly caused

a large pecuniary loss to a banking institution of which he

was a director ; sixthly, that as such local director he hadwrongfully and fraudulently appropriated to his own use

portion of the moneys of the said banking institution

;

seventhly, that if he were a member of the Governmenthe would wrongfully and fraudulently misappropriate the

public funds to his own use ; eighthly, that he was a dis-

honest person who would defraud and already had defrauded

his creditors ; ninthly, that he was a dishonest politician

and as such unworthy of being held in good repute ; andtenthly, that he was addicted to making false ancf discredit-

able statements.

The defendants pleaded (after certain exceptions whichwere overruled, vide Paterson vs. McLaughlin and Solomonda Co., 6 Buch. S. C. Rep., (1876), p. 62), first, the general

issue ; secondly, that the newspaper articles complained of

were fair and bond fide comments upon the several matters

and premises therein contained and referred to, and were

64

niy'i'swritten and published as and for such comment, and with-

june u'°^^ ^^y mahcious intent or motive whatever ; thirdly, that

Pat^^ vs*^® articles were written and published without maUce and

aii'd°so°omoJi'& "Po^ ^n occasion and under circumstances which justified

Co. the writing and publication of the said words.

Plaintiff joined issue upon these pleas.

The case was tried before Mr. Justice Denyssen and a

special jury at the end of last term, upon the following

issues :

First.—Were the words complained of written and pub-lished by defendants of and concerning plaintiff, and of andconcerning him as a merchant and member of Parhament ?

Second.—Were the said words or any of them, &c., usedwith the meaning alleged ?

Third.—Were the said words a fair and bond fide com-ment, and written and pubhshed without mahce, as alleged

in the pleas ?

Fourth.—Were the said words written, printed, and pub-lished without malice ?

Fifth.—What amount, if any, is the plaintiff entitled to

as damages 1

Or,—Instead of finding a special verdict upon each of

the above issues, whether, under all the circumstances, does

. the publication of the words amount to a hbel, and if so,

what damages has the plaintiff sustained ?

At the trial it was contended that the articles printed

in the Argus were in answer to statements made in the

Standard and Mail newspaper, and were not intended to

hbel plaintiff but to shew the inconsistency of the latter

journal, which had formerly contained attacks on the

plaintiff but had now changed its tone. There was no

plea or attempt to prove the truth of the charges made,

and one of the defendants stated in the witness box that

he did not himself beheve them. The jury, by a majority

of seven to two, found on the last general issue a verdict

for the defendants that the publication of the words com-

plained of did not amount to a hbel.

Upington (with him Maasdorp), for the plaintiff, apphed

for a new trial, mainly on the ground that the verdict wascontrary to evidence. Looking at the words complained of,

and the evidence given at the hearing, there had clearly

65

been a miscarriage of justice. The grounds upon which a i8V7.

new trial might be applied for were laid down in the 34th 7 le'

section of Act No. 7, 1854, which also introduced the "^ "

EngUsh law and practice in such matters. The Courts at McLougimr

Westminster would certainly grant rehef in a similar co.

case (3 Cutty's Practice, 3rd ed., pp. 823, 830 ; Mdlin vs.

Taylor, 3 Bing. N.C, 109 ; Mackay vs. Philip, 1 Menz.,

455 ; Starkie on Libel, 4th ed., p. 294 ; Campbell vs. Spottis-

wood, 32 L. J., Q. B., 185 ; Davis vs. Cuibush and others,

1 F. & F., 487).

Jacobs, A.-O. (with him Buchanan), for defendants Solo-

mon & Co., and Jones, for defendant McLoughhn, opposed,

and contended that the verdict of the jury was not against

the weight of evidence. The main question raised by the

issues was, whether there was mahce, and this was directly

negatived by the evidence of the defendants themselves.

The motive of the publication was a fact for the jury to

determine, and so was also the question whether the words

complained of supported the innuendoes. On both these

points there was evidence to justify the conclusion arrived

at by the jury. There was no justification pleaded or at-

tempted. It was pointed out that certain charges had been

made by a newspaper which now supported the plaintiff,

but there was no adoption of the charges. There had only

been fair comment on a matter of public interest {Starkie,

4th ed., pp. 565, 569 ; Broome vs. Gosden, 1 C. B., 728

;

Hurd vs. Algar, 6 C. & P., 245 ; Allaway vs. Bennett, 6 Jur.,

N.S., 347 ; Anon., 1 Wilson, 22 ; Norris vs. Freeman, 3

Wilson, 38 ; Swain vs. Hall, 3 Wilson, 45 ; Ashley vs. Ashley,

2 Strange, 1142 ; Smith vs. Huggins, lb. ; Anon., 2 Salkeld,

644.)

Upington, in reply, cited 2 Archbold's Practice, 1523;

Starkie, p. 440 ; Levy vs. Milne, 4 Bing., 198-9.

Cur. adv. wit.

F Posted, (June 11),

—

De Villiebs, C.J. : This is an apphcation for a new

trial made under the 34th section of Act No. 7 of 1854,

which, so far as it relates to the present case, reads as

follows :" Any party to any case tried by a jury, who shall

Vol. VII.—Paet I.I"

66

1877. be dissatisfied with the finding or findings of the jury, may.. 16. apply by motion to the Supreme Court to grant a new-— trial, on the ground of the finding or findings being contrary

McLoughiiri to evidence, or on the ground of misdirection of the Judgeand Solomon &. ', °, ,„, i ,..

Co. m a matter or law, or on the ground of the undue admission

or rejection of evidence, or on the ground of excessive

damages, or on the ground of res noviter veniens ad notitiam,

as also on any ground not herein set forth upon which a

new trial may be granted or grantable, according to the

law and practice of Her Majesty's Courts of Record of West-

minster." So that in the present case the Court has to be

guided mainly by what is the usual practice of the Courts

at Westminster in dealing with appHcations of a similar

nature. In the present case I may state at once that I have

come to the conclusion that there ought to be a new trial,

and having come to that conclusion, it would be obviously

inconvenient that the reasons for it should now be fully set

forth, as it is evidently desirable that the subsequent jury

should try this case with unprejudiced minds, and not with

the idea that their verdict must necessarily be against the

previous one. There are three circumstances in the case

which have influenced me to come to the conclusion that

there ought to be a new trial. The first of these is, that

the learned Judge before whom the case was tried last term

was not satisfied Avith the verdict of the jury ; and this is a

circumstance which, although not considered conclusive

by the Courts at Westminster, appears to have very great

weight with them in deciding whether there ought to be

a new trial or not. The second circumstance is, that it

appears to me the jury, in considering this case, laid too

much stress upon the external evidence of want of malice

on the part of defendants, and did not sufficiently take

into consideration the internal evidence of malice to be

gathered from the words themselves. I should like a fresh

jury, therefore, to reconsider this question, whether,

although they might find that in writing this article the

main object of the Argus was to expose the inconsistencies of

thf Standard and Mail, the internal evidence of mahce

was not sufficiently made out to require stronger evidence

to refute the presumption of mahce than was given at

the trial. It strikes me, as I have said, that the jury

did not take the inteiiial evidence of malice sufficiently

67

into account ; and I have no doubt a fresh jury would do i877.

so. The third and last circumstance that has weighed .. is"

with me is this, that out of a jury of nine men only —seven agreed to the verdict and two differed. It was, McLoughUn

therefore, not the unanimous verdict of the jury. Without co.

now expressing any opinion as to what the judgment of

the Court would have been if any of these three circum-

stances had been wanting, I think there is sufficient to

induce the Court to come to the conclusion that there

should be a new trial. I do not say what would have

been the opinion of the Court if the finding of the jury hadbeen unanimous, and I express no opinion on what wouldbe the judgment if the second jury should find for the

defendant again. I may state that in the present judgment

of the Court, Mr. Justice Fitzpateick, who is not able tr

attend to-day, fully concurs.

Denyssbn, J. : I have nothing to add to what has fallen

from the Chief Justice. I considered the verdict un-

satisfactory, and I think there ought to be a new trial. I

also think that it is not desirable to say anything which

might prejudice one side or the other, on the re-hearing of

the case.

New trial ordered accordingly, costs of appHcation to

abide the result.

rpiaintifl's Attorneys, Ueid & Nephew. "I

LDefendanta' Attorneys, Redelinghuys & Wessels ; Faikbkidge & Akdeene.J

[Note.—On the re-hearing of the case, the second jury,

by a majority of six to three, found a general verdict for

the plaintiff, for £100 damages.]

P 2

68

Latsky vs. Surveyor-Geneeal.

Land Beacons Act No. 7, 1865.

—

Prescription.—Crown Lands.

Prescription will run against the Crown with regard to

rights which could be alienated, but not as to inalienable

The rules laid down by the Land Beacons Act for the guidance

of Commissioners in determining on disputed beacons,

apply to disputes between the Crown and a private person,

and are not limited only to disputes between private

persons.

1877. This was an appeal from the decision of a CommissionJune 11. ^^

,,— „ appointed under Act No. 7, 1865, to enqmre mto a dispute

Latsky vs. Sur- ^^. p t e

veyor-Generai. between the appellant Latsky, proprietor oi the farm

Celeryfontein, in the District of Victoria West, and the

Surveyor-General as representing the Crown, concerning an

alleged encroachment upon Crown lands adjoining the

farm.

The evidence taken before the Commission was most

conflicting. It appeared that in 1874 Surveyor Auret,

while employed upon the survey of Crown lands in the

Victoria West division, found reason to suspect that the

farm Celerjrfontein encroached upon unalienated Crownlands. He communicated with the Surveyor-General, whoin consequence ordered a re-survey of the farm. Uponsuch re-survey it was found that according to the beacons

now standing the area so embraced was 13,293 morgen,

whereas the extent of the farm as stated in the original

grant of the farm to appellant's father in 1838, was 10,120

morgen. In consequence of this discovery, the Surveyor-

General gave Latsky notice that he disputed the correctness

of two of his beacons ; and a Commission issued under the

Land Beacons Consolidation Act to settle the question. It

was shewn that the disputed beacons had been standing at

least since 1843, but it was alleged in respect of one of

them, that there had been fraud on the part of the original

grantee in erecting that beacon where it now stood. Themembers of the Commission differed in opinion as to

whether or not fraud existed, but the majority held that it

69

had been proved, and that in consequence the appellant was is??.

deprived of his right to claim the protection of prescription.

The beacon was therefore ordered to be removed to the veyor-Geneia

spot claimed by Government. Latsky now appealed.

Jacobs (with him Leonard), for the Surveyor-General,contended that prescription could not run against theCrown.

Cole (with him Kunhardt) for the appellant, maintainedthat prescription did so run, and cited 3 Burge, 35 ; GensuraForensis, 1, 2, 10, 10 ; Matthceus, Paroem. Belg., 9, n. 24.

De Villiers, C.J. : Voet, 44, 3, 11, lays down that pre-

scription will run against the Crown with regard to all

rights which can be aUenated, but not as to inalienable

rights. This seems to be the rule of our law.

Jacobs, for the Surveyor-General, argued that the rules

laid down in the 47th section of the Act only referred to

the cases of disputes between private persons, and did notapply to Crown lands. Section 110 showed that Crownlands stood on a different footing to private property.

Even granting there was prescription, it was, by section

110, the prescription of a third of a century, and not that

of thirty years (sec. 106).

Cole, for the appellant, contended that there had not beenproof of fraud, upon which ground alone the Commissionhad refused to recognise the old-standing beacon.

De Villiers, C.J. : The 110th section so strongly relied

on for the respondent, is as follows :" Nothing contained in

the 92nd or any succeeding section of this Act, regarding

the cases or circumstances in which beacons shall or maybecome admittedly true and correct, shall apply to anybeacon adjoining any Crown land, which beacon may (ex-

cept as hereinafter excepted), be disputed by the Govern-

ment for any length of time during which the same might

have been disputed in case this Act and the several Acts

hereby repealed had not been passed." And then comes

the proviso :" Provided that nothing herein contained shall

extend to any beacon erected in conformity with any fresh

grant made, upon re-survey, under Act No. 10, 1859, or

70

1877. under this Act, all which beacons, whether within a section— ' or area or not, and if not within a section or area, whether

veyor-Generaf." under Section 94: or 104, shall be and remain indisputable."

It will be seen that this section recognises the fact that

cases may arise where beacons adjoining Crown lands may-

be recognised, but it restricts the appUcation of certain

sections of the Act to such beacons. The 47th section is

not one of those sections, and the rules there laid down for

the guidance of Commissioners are given for the purpose of

determining real and substantial justice in all cases coming

before them. The Commissioners had by a majority found

that there had been an act of fraud on the part of the

original grantee, which had deprived him and his successors

of the benefit of that part of the section which establishes

as the true beacons such well-ascertained beacons as have

existed for thirty years and upwards. For my own part, I

must say that I rather agree with the dissentient Com-missioner who considered that there was not sufficient

evidence of fraud, though there may have been grounds

for suspecting it. Clear evidence of fraud was necessary,

more especially in a case like the present, where the managainst whom it was charged was long since dead. There

is not such clear evidence, and the appeal must therefore be

allowed. But independently of the question of fraud on

the part of the original grantee, I think the appellant is

entitled to the disputed beacon by right of prescription,

it having been well ascertained and recognised for a period

of thirty years. The appeal wiU be allowed with costs, andthe beacons claimed by appellant declared the true beacons

of the farm. The appellant, however, must pay the costs of

the re-survey of the farm, as he has reaped the fuU benefit

thereof.


Appeal allowed accordingly, with costs.

PAppellant's Attorneys, Eedelisghuys & Wessels."!i_Respondent's Attorneys, B.EID <t Nephew. J

Stimmc.

71

Grundling vs. Executors of Stimmb.

Evidence.—Non-admissibility of affidavit of Witness uimhle

to attend the trial.

Where medical evidence was produced to show that a witness

was unable through illness to attend the trial, the affidavit

of such witness made ex parte for an interlocutory appli-

cation in the suit, was not allowed to be used as evidence

at the trial, the opposite side objecting.

This was an action to compel transfer of certain property 1877.

under a will. There had been a deed of hinderbewys, and J"^^.

the question in issue was whether or not the heirs had been B™e"utOT9'ot

paid their portions. Proceedings had been commenced byan apphcation by defendants for an interdict restraining the

transfer. A rule nisi had been granted, and on the return

day certain affidavits were filed and read, the result being

that the rule was made absolute pending an action.

At the trial,

—

Upington, for the plaintiff, produced the affidavit of the

District Surgeon of Oudtshoorn, setting forth that he wasattending one of the witnesses who was suffering from ery-

sipelas in the leg, in consequence of which the witness wasentirely disabled and would not be able to travel without

seriously injuring his leg, and that the witness would not be

able to travel any distance within a month's time. Underthese circumstances Counsel asked leave to use as evidence

the affidavit made by the witness in the matter of the

interdict ; and cited Taylor on Evidence, sec. 479.

Jacobs, A.-G., for the defendants, opposed. The affidavit

had been made ex parte.

The Court ruled the affidavit inadmissible in evidence.*

[After hearing the evidence of other witnesses, judgment

was ultimately given for plaintiff.]

rPlaintiffs Attorneys, C. & 3. Btjissinn^.]

LDefendants' Attorneys, Faikbkidge & Akderne. J

* [Since this decision Bule of Court No. 335 has been promulgated.

-

Ed.J

1877,Tune 14.

Jie Borcherds.

Re BOBCHERDS.

Insanity.—Release from Curatorship.—Evidence.

Affidavits held sufficient evidence upon which to release from

curatorship a person who had previously been found to he

of unsound mind.

The petitioner had some time previously after due en-

quiry been found to be of unsound mind, and placed under

curatorship.

Jacobs, A.-G., now appUed to have petitioner declared of

sound mind, and her person and estate released from curator-

ship. He produced affidavits from two medical men stating

petitioner's recovery, and further ofifered to produce peti-

tioner in person in Court.

De Villiees, C.J. : It is unnecessary to produce the

petitioner. The Court will not require the same strictness

of proof to declare a person of sound mind as it does to

declare a person of unsound mind. The affidavits and

certificates of the doctors are quite sufficient.

AppKcatioH granted accordingly.

[Applicant's Attorneys, REDEtiKGHUYS & Wessels.]

1877.June 14.

July 12.

Combrink vs.

Combrink &Wilson.

COMBEINK^W. COMBEINK & WiLSON.

Prodigal.—Drunkenness.—Curator.

A person who had given way to constant intemperance, and who

was squandering his property in liquor, and was ill-treat-

ing his wife and family, declared a prodigal, and his estate

placed under curatorship.

The applicants were the superintending guardians of the

minor children of the respondent Combrink and his deceased

wife, and the respondents were Combrink and one Wilson.

Cole, for'the applicants, moved upon notice for an order

restraining the respondents from carrying out a contract of

73

sale and purchase of a certain dwelling house, or for the istv.June 14.

payment of the price by Wilson to Combrink. Apphcants July 12.'

alleged that Combrink had only a hfe interest in the combrinkss.

property, and that Combrink was drinking to excess and wiison.

squandering the estate.

Upington, for the respondents, read Combrink's affidavit

denying the allegations made against him, and claiming the

right to sell the home, and stating that he had other

property on which he intended to erect a dwelling.

The Court, as the wiU was not forthcoming, granted a

provisional order directing the payment of the purchase

price to the Master, pending further decision upon further

information to be furnished as to respondent Combrink's

prodigal habits.

Posted (July 12),—

Cole, for applicants, produced affidavits from the guar-

dians, respondent's present wife, the children, and others,

setting forth that Combrink had for some time past been

constantly drunk, that he had sold his country property andsquandered the money, as also the proceeds of certain stock

and other movables belonging to his present wife (to whomhe was married out of community), that he was not support-

ing his family, but interfered with and took money obtained

by his wife by her own exertions, that he was constantly ill-

treating and threatening the hves of the members of his

family, and that his medical attendant declared he was

bordering on ddirium tremens. By the wiU of Combrink and

his first wife the survivor was instituted heir, and was

required to educate and maintain the children of the

marriage, and on majority or other approved condition to

pay them such an amount as the survivor should find them

entitled to. In case of second marriage the children's

portions were to be ascertained, but there was no specific

bequest to the children.

Buchanan, for the respondent Wilson, submiLted to the

order of the Court. The respondent Combrink madedefault.

The Court declared the respondent Combrink a prodigal,

74

1877. and appointed applicants the curators of his property, the

jSiy'i^2*' purchase money of the house sold to Wilson to be paid to

comitetakos. the curators, the interest of which was to be appHed in

'^ wK!* certam proportions for the benefit of the family and of the

prodigal ; costs to come out of fund. Leave reserved to re-

spondent Combrink to apply to the Court to vary this order.

TApplicant's Attorney. "Dr Pkefz. "1

L. Respondents' Attornej-s, >".airbridge. Akdeexe & Sc.4XiEX.J

Patebson vs. Kemp's Executors.

Purchase and Sale.—Inheritance.

The purcJiaser of an inheritance is bound, besides the payment

of the purchase money, to save the seller harmless from all

claims and demands of the creditors of the estate. If the

purchaser wishes to avoid the payment of any particular

debt, he must dearly prove that the seller at the time of the

sale intended to relieve him from the liability.

The plaintiff was formerly in partnership with one K. On the

death of his partner plaintiff agreed with his heirs to pur-

chase the assets of the private and partnership estates for

£25,000. Among the private assets was a farm, on which

farm was a bond for £1000. The plaintiff alleged that

it was agreed that he was not to be liable for any of the

private debts of the deceased, but this condition was denied

by the executors. Held,

—

that the bond was a liability

taken over by the plaintiff by the terms of his purchase.

June 27.'^^® defendants, in their capacity as the executors testa-

Juiy^z!mentary of the late Joshua Williamson Kemp, were sued

"_J^- to recover a certain sum of money for the benefit of the

^^K^p-^' plaintiff's insolvent estate.Executors. The declaration set forth that Paterson, the plaintiff,

formerly carried on business in partnership with one GeorgeTownsend Kemp (since deceased), under the style of

Paterson, Kemp & Co., and that during the existence of

such partnership, on the 21st February, 1863, certain

two lots of ground in Thompson Street, Port Ehzabeth,were transferred to the co-partnership, though as a fact

75 "1

the plaintiff was the sole owner of such property, of which 877.June 27,

the defendants were aware. That the defendants, being duly » 29'

authorized thereto, sold the said property to one McDonald ,. i2i

for £1500, but that instead of paying the whole of the Patersonra.

purchase money to plaintiff's estate, the defendants paid Executors,

only one half thereof, retaining the other half for the benefit

of the estate of the said George Townsend Kemp (who wasthen deceased, and of whom the defendants represented the

heir), alleging that they had a right to set the same off

against a certain bond for £1000 which had been passed bythe said George Townsend Kemp in his lifetime on a farmcalled Coega, and for which bond the defendants contendedthat the plaintiff was hable, but which contention the

plaintiff denied ; wherefore he prayed judgment for £750, the

half of the said purchase price, together with interest fromthe 7th June, 1872.

The defendants pleaded, first, the general issue. Thenspecially that the farm Coega, formerly owned by GeorgeTownsend Kemp and bonded for £1000 by him, was,by agreement made in the year 1863 with the late JoshuaWilliamson Kemp, who was heir of George TownsendKemp, taken over by the plaintiff with the mortgagethereon ; and that after the said agreement the said JoshuaWiUiamson Kemp in his lifetime, and the defendants since

his death, had been obliged to pay in respect of the farmand of the bond, interest, quit-rents, road-rates, &c., moneysto an amount far exceeding the sum of £750 claimed byplaintiff ; that in 1872, the farm was sold and reahzed

£1250; and that after giving the estate credit for thesaid sums there remained nothing due to plaintiff, as wouldbe seen from an account annexed to the declaration. Afurther special plea alleged that the £750 was retained bydefendants by special agreement, to be applied in settlement

of the before-mentioned claims. In a claim in reconvention

defendants recapitulated the above statements, and claimed

the amount of £763 17s., as being the balance on the account

annexed to the declaration.

In his replication, plaintiff denied the agreement set forth

in the plea, but alleged that in 1863 it was agreed betweenthe plaintiff and Joshua WiUiamson Kemp, as heir aforesaid,

for the sale for £25,000 to plaintiff of all the assets belong-

ing to the private estate of George Townsend Kemp, and of

76

1877. his share of the partnership estate of Paterson, Kemp & Co.,

„ 29! with the express understanding that Joshua Williamson

„ 12- Kemp was to be hable for any private debts of George

Paterson »s. Townseud Kemp. Plaintiff also denied having entered

Executors, into any agreement to pay or become hable for the bondof £1000.

At the trial a mass of correspondence and of accounts

were put in, and some viva voce evidence given. There hadnot been any formal agreement drawn up, and the intention

of the parties had to be gathered from the letters, some of

which dealt with family matters and were not strictly

business communications. It appeared that plaintiff's

former partner, George Townsend Kemp, died intestate on

the 15th October, 1862, leaving both his parents and some

brothers and sisters him surviving. Shortly after his death,

his father Joshua Williamson Kemp, as joint heir ab intestato

with the mother of the deceased, entered into negotiations

with the plaintiff, his son-in-law, for the sale of the inheri-

tance including the private as well as partnership estate.

The negotiations were of a protracted nature, and the ulti-

mate arrangement arrived at was a very loose and informal

one. The plaintiff's version was that he was to pay £25,000

for the assets of the private and partnership estates, after

realization, and that he was not to be hable for any other

debts of the estate. The defendants, on the other hand,

contended that the sum of £25,000 was to be paid for the

gross assets of the estate, and that the plaintiff was to be

liable to all the burthens and Uabihties of the estate.

Among the assets of George Townsend Kemp's private

estate was a house in Frances Place, Port Ehzabeth, and a

farm at the Coega, near Port Ehzabeth ; and upon each of

these properties there was, at the time of his death, a

mortgage bond of £1000. As part of the original arrange-

ment, the Frances Place property was transferred to one

of the plaintiff's daughters, and the hability under the bondwas taken over with the property. In regard, however, to

the Coega farm, it would appear that neither the plaintiff

nor Joshua Wilhamson Kemp was aware of the bond uponit until the end of 1865 or beginning of 1866, when a

dispute immediately arose between them as to which of

them was to be hable for the capital of the bond, arrears of

interest, quit-rent, and road-rates. The plaintiff alleged

77

that this dispute was settled by Joshua Williamson Kemp's i877.June 27.

agreeing to take back the farm, and to except this farm, as ..29."

it were, from the assets disposed of under the sale of George ..12'

Townsend Kemp's inheritance. In cross-examination, how- Patersonss

ever, the plaintiff stated that the agreement of 1866 was Executors.

that Joshua WiUiamson Kemp should have to account withhim for whatever the farm might realize over and above the

sum of £1325, which was then the amount of the bond, arrears

of interest, current interest, quit-rent, and road-rates. After

the beginning of 1866, Joshua WiUiamson Kemp treated

the farm as his own, paid the road-rates, quit-rent, andinterest on the bond, and placed his own servants on the

property. For this purpose he at first employed his son,

Matthew Kemp, who was also executor dative of George

Townsend Kemp's estates, and afterwards Francis Carpenter,

the Secretary of the Guardian Company at Port Elizabeth.

The estate of Paterson, Kemp & Co. was sequestrated as

insolvent in January, 1867, and the plaintiff's private estate

in April, 1867. Among the proofs of debt against the plain-

tiff's estate was one made by Joshua Williamson Kemp, which

included, amongst other things, a claim for interest under the

bond on the Coega farm to December, 1866. The defendants

contended that no objection was ever specifically made to

this claim by the plaintiff ; but it appeared that the plaintiff

did raise certain general objections to the claims. Joshua

Williamson Kemp died in 1868, and Matthew Kemp, one of

his executors, continued to exercise acts of ownership over

the Coega farm until 1872, when it was sold and reahsed

far less than the bond, with accumulations of interest, road-

rates, and quit-rents. The defendants did not deny that the

plaintiff was entitled to receive the whole of the proceeds

of the Thompson Street property, and that they had re-

ceived one half, but they claimed the right to set-off against

the plaintiff's claim of £750, the difference between the

proceeds of the farm and the amount of the bond with

interest from the year 1864 down to the date of sale.

Cole (with him Maasdorp) appeared for the plaintiff, and

Jacobs, A.-G. (with him Leonard), for the defendants. The

arguments were directed mainly to the facts.

De Villibes, C.J., in giving judgment, said : The de-

78

1877.June 27.

„ 29.July 2.

„ 12.

PaterBon vs.

Kemp'sExecutors.

cision of this question must depend upon the view which

the Court takes of the arrangement made between the

plaintiff and J. W. Kemp in the beginning of 1866. In

regard to the original agreement between the parties, it is

perfectly clear from the scraps of correspondence put in and

from Matthew Kemp's evidence that, whatever the plain-

tiff's intentions may have been, Joshua Williamson Kempnever intended, in ceding his right of inheritance to the

plaintiff, to reheve the plaintiff from the liabihty which he

would under the law of this Colony incur in the purchase

of the inheritance. No doctrine is more clearly estabhshed

in our law than that the purchaser of an entire inheritance

is bound, besides the payment of the purchase money, to

save the seller harmless from aU claims and demands of the

creditors of the estate (Voei, 18, 4, 1, et seq. Van der

Linden's Institutes, b. 1, ch. 15, § 9). If the purchaser

wishes to avoid the payment of any particular debt he

must clearly prove that the seller at the time of the sale

intended to reheve him from the KabUity. In the present

cause the account framed by Matthew Kemp on the 26th

February, 1864, is rehed upon by the plaintiff's Counsel as

showing that the parties originally intended that the

plaintiff should not be hable for George Townsend Kemp's

debts. It is said that Berry's account for repairs done to

the Frances Place property before G. T. Kemp's death is

treated in the account as a debt payable by G. T. Kemp's

estate, and that the amount has been deducted from the

price agreed to be paid by the plaintiff for the inheritance.

But then it is in evidence that when this account was shown

to Mr. Joshua WiUiamson Kemp he immediately objected

to the deduction, and that the deduction was only allowed

because, this being a family arrangement, the seller did not

wish to insist upon his strict rights against the purchaser.

Moreover, the plaintiff having consented to his daughter

taking over the liabihty under the bond on the sameproperty, can hardly take advantage of the fact that he is

credited with the amount paid to Berry. In regard to the

Coega farm, it is common cause between the parties that

when the bond on it was discovered Mr. Joshua Williamson

Kemp insisted upon the plaintiff paying the amount of the

bond and the arrears of interest, and that the plaintiff

refused to do so. Upon such refusal one of three courses

79

was open to Mr. J. W. Kemp. He should either have isv?.June 27.

tendered transfer of the farm on condition of the plaintiff ., 29!

paying the bond and arrears of interest, quit-rent, and road- „ 12!

rates, or he should have sold the farm, paid off the bond Patersonns.

and other claims, and, if a deficiency remained, claimed Executors.

such deficiency from the plaintiff, or he might have re-

pudiated the original contract altogether. He adopted

neither of these courses, but suspecting, as it appears, the

solvency of the plaintiff, and being desirous to recoup

himself for any future claims in respect of the farm which

he might be called upon to pay, he entered into negotiations

with the plaintiff for taking over the farm together with

all HabiUties accruing thereafter. The result of these ne-

gotiations was that J. W. Kemp was to be allowed to

remain in possession of the farm, to treat the property as

his own, and to be hable for all future claims in respect

thereof. After this arrangement the plaintiff ceased to have

anything to do with the farm, he received no rent, and the

property was under the sole control of J. W. Kemp. Ac-

cording to the evidence of Mr. Carpenter, Mr. Kemp, whenhe left the Colony in 1866, told him that MatthewKemp would in future attend to the farm, and according to

the evidence of Matthew Kemp he dismissed Gower, the

plaintiff's former tenant, and placed Kelsey on the farm, oncondition that he should pay a rent of £5 a month if hecould raise a revenue of that amount from the proceeds of

the farm, and from a small hotel and shopkeeper's business

in which he was supported by Matthew Kemp himself.

Joshua Williamson Kemp died in 1868, but the farm wasnot sold until 1872, when it realized the sum of £1250.

From 1868 to 1872, J. W. Kemp's executors remained in

possession of the farm, and there is no evidence that they

ever tendered transfer of the farm to the plaintiff. Havingsold it, they claimed that the plaintiff should be hable for

the difference between the purchase price on the one handand the amount of the bond, arrears of interest under the

bond, quit-rent, road-rates, and iuterest on advances madeby J. W. Kemp and his executors on the other. I am of

opinion, however, that the defendants are only entitled to

the difference between the purchase price and the amountof the bond, with arrears of interest due in September, 1866.

The agreement entered into in the beginning of that year

80

1877. clearly contemplated that the plaintiff should not be liable

.,^29! for interest accruing after the current year. The interest on

^"f/ii: the bond fell due on the 15th September of each year ; the

Pateisonvs. arrears of interest amounted to £320. The arrears of quit-

Execufors. rent in November, 1866, amounted to £5 19s. The total

liability, therefore, accruing due during the year 1866, in-

cluding the bond, amounted to £1325 19s. This is almost

exactly the sum mentioned by the plaintiff in his evidence

when he said that the arrangement in January, 1866, was

that J. W. Kemp should account for anything the Coega

farm might realize over and above the sum of £1325. Suchan arrangement would be quite inconsistent with a total

abandonment of the farm to J. W. Kemp, with all its

liabUities, but it would be perfectly consistent with an

agreement under which the plaintiff would remain Hable for

claims accruing up to and during the current year, but

would be protected from claims accruing thereafter in

consideration of J. W. Kemp's having the exclusive use

and occupation of the farm. All the facts of the case

point to this as being the real agreement between the

parties. If this view be the correct one, it would foUow

that the defendants can only debit the plaintiff with the sumof £1325 19s., and the subsequent expenses of sale andcancellation of the bond, amounting to £38 12s. The farm

reahzed £1250, which sum being deducted from £1364 lis.

(the total amount of claims for which the plaintiff is liable)

leaves a balance of £114 lis. owing by the plaintiff in

respect of the farm. Deducting £114 lis. from the sum of

£750, which was admitted by the defendants to be due, there

reinains a balance of £635 9s., for which judgment must be

given in favour of the plaintiff. But, even if the view taken

by the Court of the agreement of 1866 be not the correct

one, the judgment of the Court would remain substantially

the same. From 1866 to 1872, J. W. Kemp at first, and

the defendants afterwards, have had the exclusive use andoccupation of the Coega farm with the avowed object of thus

securing themselves against the claims which would from

time to time arise in respect of the farm. They might have

tendered transfer of the farm to the plaintiff, or they might

have sold the farm for the purpose of paying off the debt

;

but instead of pursuing either of these courses, they re-

mained in possession of the farm, and left the plaintiff,

81

who might otherwise have protected his own interests, t^^''27

under the impression that he would not be called upon, at .. 29.

aU events, to pay future Habihties. Under such circum- .. ^stances something is due to the plaintiff for the use and Patersonw.

occupation of the farm until the day of sale, and, in the Executors.

absence of evidence directly bearing upon the point, the

amount of interest and of road-rates and quit-rent falling due

during the intervening period cannot be regarded as anexorbitant sum to be paid for such use and occupation. Thejudgment of the Court must therefore be for the plaintiff, for

the sum of £635 9s. with costs.


Judgment accordingly for the plaintiff, for £635 95., with

costs.

[Plaintiff's Attorneys, Eeid & Nephew. I

Defendants' Attorneys, FAntBKiDaE, Akdekne & Soanlen.J

David vs. Abdol Rajieb.

Pawper.—Costs.—Former proceedings.

An action was instituted against defendant as to the right of

possession of and to the forms of service to be used in a

certain Mosque, which action, upon exceptions taken, ter-

minated in favour of defendant with costs. The present

plaintiff, who was no party to the former suit, now applied

for leave to sue defendant in form^ pauperis in respect

of issues similar to those raised in the former action.

The defendant objected that his costs in the former pro-

ceedings had not been paid. Leave to sue refused.

The plaintiff, after reference of his petition to Counsel, 1877.

obtained a rule nisi, calling upon defendant, a Mohamedan JL '

priest, to shew cause why plaintiff, a member of the congre- AbdorRajieb,

gation worshipping in the Mohamedan Mosque in the

Buitengracht, should not be permitted to sue in forma

pauperis in an action to have the said Mosque trans-

ferred to trustees for the benefit of the Shafee sect of the

Vol. VII.—Paet L G

82

1877.July 13.

David vs-

Abdol Eajieb.

Mohamedan faith, the defendant declared to have departed

from the said faith, and for other purposes.

The defendant filed affidavits shewing that religious

disputes- had arisen in connection with the Mosque in

question and the ritual performed therein ; that he had

been sued in 1873, by Achmet Sadib and others relative

thereto, which action had terminated in his favour, and that

portion of his costs incurred therein stiU remained unpaid

;

and that in January last fresh proceedings had been in-

stituted by Gafieldien and others, to whose declaration

defendant's exceptions had been sustained with costs, which

costs had not been paid ; and that the issues now raised byplaintiff were substantially the same.

Jacobs, A.-G. (with him Buchanan), for the defendant,

shewed cause, and took the preliminary objection that

plaintiff was barred from proceeding until the previous costs

had been paid {Simson & Co. vs. Fleck, 2 Menz., 255 ; Vander Liet vs. Executors of Karnspeck, 3 Menz., 395).

Maasdorp, for the plaintiff, contended that the other pro-

ceedings were inter alios ; and moreover the issues were not-

the same. If the plaintiff was aggrieved he was entitled taredress.

De Villiers, C.J. : The Court cannot allow the de-

fendant to be harassed by pauper actions in this way. Thedisputes all arise from the same cause, and on principle the

defendant is entitled to past costs before new proceedings

against him are instituted. Then on the merits, either the-

plaintiff stands alone, in which case the Court wiU not at.

his instance turn out the whole congregation ; or the plaintiff

represents a number of persons who are opposed to de-

fendant, in which case the Court wiU not allow all these

people to fight their battle through a pauper. The appli-

cation must be refused, and the rule nisi already obtained.

wiU be discharged.


Apphcation refused accordingly, no order as to costs.

83

McIntyre vs. Goodison.

Married Woman.—Puhlic trader.—Act No. 20, 1856, sect. 51.

The respondent, a married woman, obtained a wine and spirit

license in her own name. She afterwards gave appellant

a power to sell for her, which power she subsequently re-

voked, but appellant notwithstanditig continued to sell.

Thereupon respondent prosecuted appellant in the Resi-

dent Magistrate's Court for a contravention of the

Licensing Acts. An exception that the respondent could

not, under the 5l5i section of Act No. 20, 1856, sue in the

Magistrate's Court without being assisted by her husband,

overruled, the ordinary law, emancipating from the

husband's curatorship a woman who was a public trader,

applying to this case, and the 5lst section being applicable

only to civil cases.

The respondent Goodison, married out of community and 1377.

residing in Cape Town, obtained a wine and spirit license -I—'

in her own name for the Welcome Inn. She afterwards '^gooSsoiT.*"

sold her goodwill to one Leslie, and authorized appellant,

who was in the same interest with Leslie, to act as barmaidfor the sale of hquors at the Inn. Disputes arising, she

revoked her power of attorney, but appellant continued to

sell. Thereupon respondent prosecuted appellant in the

Resident Magistrate's Court for a contravention of section 7

of Act 8, 1875. There was a defence set up on the merits

founded on the nature of the contract between the parties,

to which it is not necessary further to refer. An exception

was also taken to appellant suing without being assisted byher husband. The Magistrate fined appellant 10s. TheMagistrate's decision was now brought in appeal.

Buchanan, for the appellant, contended that there was a

good defence on the merits. As to the exception, the

51st section of the Magistrate's Court Act, No. 20, 1856,

required a married woman to be assisted by her husbandin any action brought by her, where the husband resided,

as he did here, within the district. This was a private

prosecution under section 15, of Act No. 8, 1875.

Upington, for the respondent, supported the decision of

the Magistrate on the merits. As to the exception, the

respondent was a pubhc trader.

G2

84

1877. De Villiees, C.J. : Upon the merits, in my opinion thejiflyis.

(jgj,igjQn Qjf ^;]^g Magistrate was correct. The respondent, in

GooasoD.^' whose name the license stood, had given to the appellant a

power of attorney to carry on the business in her name.

While this power remained in force the appellant could not

be prosecuted for a contravention of the Licensing Act.

But it was in the power of the respondent to revoke her

power, unless indeed it was an irrevocable power, which the

law would not allow her to revoke. I do not think it has

been proved in this case that it was such an irrevocable

power. The technical objection no doubt raised an im-

portant question, but it is not necessary to decide on the

general law apphcable to all cases. In this particular case

the Ucense was made out in the name of the respondent

;

and we must, in the absence of evidence to the contrary,

presume that she acted with the consent of her husband as

a pubhc trader. I find that Van der Linden says, on

page 84 :" The wife becomes, by marriage, as it were a

minor ; and the husband her curator or guardian : she has

no power to appear in Court ; she is not capable of herseK

to enter into any contract without the knowledge or consent

of her husband, so as to bind her to others, except so far as

she may clearly appear thereby to have derived an ad-

vantage or profit ; or that she, with the knowledge of her

husband, has carried on trade openly." Again Van der

Linden says, at page 396 :" In hke manner, when the cause

concerns a married woman, the husband must appear for the

wife, except in the following cases : 1. When the woman is

a pubhc trader," &c. Therefore inasmuch as this hcense

was in the name of the woman herself, without the husband

in any way being recognised or named in it, I think she

has obtained a locus standi in matters appertaining to that

license and business connected therewith, so as to entitle

her to institute this private prosecution, to which the 51st

section of the Magistrate's Court Act does not apply.



CAppellant's Attorney, Buchanan. "l

Kespondent's Attorney, Path de \'illiers.J

85

Queen vs. Opbnty.

Perjury.—Materiality of Evidence.

A conviction for perjury quashed, where the materiality of

the evidence on which the perjury was assigned was not

shewn.

A preparatory examination was held before the Magis- ^1^77^

trate of Carnarvon against one Morris charged with the a^^^^.murder of one Openty. At this examination Mrs. Openty openty.

deposed inter alia : "I never received any money from anyone since Openty's death except for debt ; nor have I

caused search to be made for any money." At the Circuit

Court for Victoria West, Morris was tried and convicted of

the murder. Mrs. Openty was at the same Circuit charged

with perjury assigned on the above statement, the in-

dictment alleging that at the preparatory examination it

was material and necessary to ascertain if Mrs. Openty hadreceived any money except for debt, and whether she hadcaused search to be made for any money. Mrs. Opentypleaded not guilty, and after evidence had been given, her

Counsel claimed her acquittal on the ground that the

materiahty of the evidence on which the perjury was as-

signed had not been proved. The presiding Judge, Mr.

Justice FiTZPATEiCK, reserved the question for the decision

of the Supreme Court. The accused was thereafter found

guilty.

Posted (August 1), in the Supreme Court,

—

Hoskyns, for the prisoner, moved to have the conviction

quashed. It was essential that the evidence on which the

perjury was assigned should be material (Roscoe on Evidence,

7th ed., p. 805 ; Greenleaf and Redfield, vol. 3, 8th ed.,

p. 167). It could not be material to the charge of murder

against Morris, whether or not Mrs. Openty received or

made search for money.Jacobs, A.-O., for the Crown, supported the conviction. In

the indictment it did not state that it was material to

ascertain whether or not Morris had committed murder, but

whether a crime had been committed at all. The statement

86

1877. made was material to that enquiry. It was not necessary

—^ that the evidence should be material to any particular issue

openty.' of the enquiry. It would be sufficient if it went to the

credibUity of a witness (3 Russell on Crimes, p. 12).

Hoskyns, in reply, pointed out that the indictment did

not allege that the evidence was material to a question of

credibility, but to the fact whether or not Mrs. Openty hadreceived or searched for money.

De Villibes, C.J. : The question is not, whether whatMrs. Openty swore to at the preparatory examination is

true or not, but whether it was material to the issue raised

in the indictment. It is difficult, without having aU the

facts and evidence before us, to say whether the statement

was altogether immaterial. I can easily conceive circum-

stances under which the evidence would be material. TheAttorney-General contends that it was material to the

witness's credibUity. But that is not the charge in the in-

dictment. We are restricted to the records before us, andfrom what I can see, I cannot connect the question whether

or not Mrs. Openty received money except for debts or

made search for money, with the guilt of Morris as the

murderer of Openty. It is not necessary to lay much stress

on any supposed distinction between our law and that of

England, as to materiahty of the evidence. It wiU, for our

present purpose, be sufficient to refer to the statement of the

law given by Van der Linden, p. 314, that" the crime of

perjury is committed " when we premeditately, to the

prejudice of a third person, declare under oath, that to be

true which we know to be false." It is not shewn here that

the evidence given could, if false, prejudice either the

prisoner, or the Crown. Under these circumstances the

conviction must be quashed.

J^ENYSSBN, J., was of the same opinion.

Conviction quashed accordingly.

Van Zyl.

87

QtTEBN VS. Van Zyl.

Circuit Court.—Authority to prosecute.—Ord. No. 8, 1852.

In the absence of the letter of the Attorney-General, ap-

pointing a Barrister to prosecute at a sitting of the

Circuit Court, the Resident Magistrate of the district,

under the \Uh section of Ordinance No. 8, 1852, gave a

written authority to a Barrister to appear in Court andto conduct the prosecutions. An objection taken by aprisoner to such appointment overruled.

At the sitting of the Circuit Court at Beaufort West, 1877.

before Mr. Justice Fitzpateick, Counsel appeared to prose- iul I',

cute for the Crown on a power in the following terms :

—

Qulen».».

" I, the undersigned, do hereby certify, that owing to some cause to meunknown, no authority to prosecute in the Circuit Court to be holden at

this place this day, has been received from the Hon. Attorney- General. I

do hereby authorize and appoint Mr. Advocate Hercules Tennant to

appear in the said Court and to conduct the prosecution therein.

,

" (Signed) Egbert Gaecia, R.M."

Among the indictments presented, was one against VanZyl, for the crime of fraud. Upon being arraigned he filed

the following pleas :" That this indictment ought not

further to be prosecuted against him, because that Hercules

Tennant, Esq., who claims to prosecute for and on behalf

of Her Majesty's Attorney-General, hath not any title so

to prosecute, and this he is ready to verify ; wherefore he

prays judgment, and that by the Court here he may be

dismissed and discharged from the premises in the in-

dictment above specified. And further pleads, that he is

not guilty."

Tennant, for the Crown, verbally rephed, denying the

want of authority, and referring to the document signed

by the Resident Magistrate of the district ; and stating

further that a power direct from the Attorney-General to

him had been duly issued, although he was not at the

moment in a position to prove the fact.

Jones, for the accused, claimed the immediate discharge

of the prisoner, on the ground that there was no duly

qualified prosecutor.

88

1877. FiTZPATKiCK, J., Overruled the objection, and ordered

Au|. 2. the point to be reserved for argument before the SupremeQueen j)S. Court.Van Zyl.

The trial then proceeded, and a verdict of guilty was

returned by the jury.

Jones, for the prisoner, moved in arrest of judgment

under the 102nd Rule of Court, pending the decision of

the Supreme Court on the point reserved.

The CouET ordered accordingly. Sentence to be passed

in the Supreme Court. Prisoner admitted to bail to appear

to receive sentence when called upon.

Posted (July 3), in the Supreme Court,

—

Jones (with him Hoskyns), for the prisoner, contended

that by Ordinance No. 40, 1826, section 6, and Ordinance

No. 8, 1852, sections 13 and 14, the only persons entitled

to prosecute in this Colony were, the Attorney or SoHcitor

General, Clerks of the Peace in Circuit Courts, persons

specially appointed by the Attorney- or SoHcitor-General to

appear in particular cases, persons prosecuting as private

prosecutors interested in a case and prosecuting in their ownnames, or lastly, persons duly authorized by the Attorney

or SoHcitor General by a writing under their own hands, to

prosecute in Circuit Courts. Mr. Tennant had claimed to

be authorized to prosecute by a writing given under the

14th section of Ordinance No. 8, 1852; but this section

provided only for the case of the Clerk of the Peace being

unable to prosecute by reason of sudden illness or other

causes, and did not provide for the absence of the usual

power from the Attorney-General. By Rule of Court

No. 76, the prisoner was entitled to his discharge, as there

was no competent prosecutor present at the trial.

Jacobs, A.-G. (with him Tennant), produced affidavits to

shew that before the sitting of the Circuit Court the usual

power to Mr. Tennant had been signed and issued, but hadnot reached Beaufort West by the day of the sitting of

the Court. There was no prejudice caused to the prisoner.

Van Zyl.

89

De Villiers, C.J. : Technically we might hold fhat, in i877.

the absence of any evidence whether or not there was a Aug. 2'.

Clerk of the Peace at Beaufort West, who was for some QueenDs.

reason unable to appear, the Magistrate had power underthis 14th section to appoint some fit and proper person to

prosecute. But I think we may lay down that such a

power is vested in the Magistrate when from any " other

cause " there is no person present who is authorized to

conduct the prosecution ; and that the section will applyto a case like the present, when no power had been re-

ceived from the Attorney-General.


Appointment . of prosecutor by the Magistrate held

sufficient, and conviction sustained accordingly. Prisoner

ordered to be brought up for sentence in the SupremeCourt on the first day of next term.

Posted (August 2),—The prisoner being in Court, andafter enquiry into the circumstances of the case,

—

De Villieks, C.J. (Pitzpateick, J., being absent

through illness), passed the sentence of the Court, that

the prisoner be imprisoned for a period of six months,

with hard labour.

Van dee Meewe vs. Exectjtoes oe Van dee Meewe.

Will.—Bequest of Property held jointly.

A bequest of property which the testator knows belongs to

the testator jointly with another, is presumed to be a be-

quest only of the testator's share, except where the property

is the joint property of the testator and of his ownresiduary heir, in which case the whole of the property is

included in the bequest.

This was a friendly suit to determine the rights of parties Aug. e.

under certain testamentary writings. van deTMerwe

Andries Petrus van der Merwe and his vnfe Hester EHza- van'Sr Merwe!

90

1877. beth were married in community of property. The husband^^' died on the 25th November, 1870, leaving him surviving,

tis. Executors of his wife, a son Johannes Hendrik ; two grandchildren, the

issue of a daughter named Jacomina, who had been married

to one Boshoff ; and three great grandchildren, named Wil-

lem Jacobus, Hendrik Johannes, and Andries Petries Vander Merwe, children of a granddaughter named Hester Eliza-

beth, child of another son. On the 5th December, 1863,

husband and wife had executed a joint wiU, and on the 17th

February, 1868, and 24th November, 1868, two codicils, bywhich the survivor was appointed executor or executrix, and

the testators gave pre-legacies of farms to each set of heirs,

such legacies to take effect on the death of the survivor.

The survivor and descendants were instituted heirs to the

residue. By the wUl, as one of the pre-legacies, the farm

Hondebek was bequeathed after the death of the survivor to

the granddaughter Hester EHzabeth, for £500, but this pre-

legacy was revoked by one of the codicils. The widowadiated under the wiU, and subsequently she by testament

bequeathed the farm Hondebek to her three " klein kin-

deren," Willem Jacobus, Hendrik Johannes, and Andries

Petrus, upon payment of £600 into the estate. It was not

seriously disputed that the " klein kinderen " (lit. " grand-

children ") referred to the great grandchildren. The real

contention was whether the widow could make the bequest

of the whole of the farm ; or what was the value of the

legacy, and how was it to be determined ?

Maasdorp, for the plaintiff, who sued in his capacity as

guardian of the great grandchildren, contended that the

bequest carried the whole of the farm. If the property had

entirely belonged to third persons, the widow's executors

would have been bound to have procured it if possible for

the legatees, or to pay them the value thereof.

Upington, for the executors of the widow, contended that

the bequest was only of the widow's interest in the property.

This was of one-half the farm by right of the community,

and of one-sixth as heir's portion under the mutual will

(equal in aU to two-thirds).

The CouET (De Villiers, C. J., and Denyssen, J.) ordered

that the defendants transfer to the plaintiff in his capacity

91

as guardian, either the whole of the farm ; or two-thirds i877.

thereof and pay one-third of the value of the farm at the^—'

time of the death of the testatrix ; upon payment in either X^BxIcutorf

case by plaintiff of the sum of £600 into the widow's estate.Zander Merwe.

Costs to come out of the widow's estate.

De Villiers, C.J. : This case raises a question of in-

tention, and is, I think, met by the passage in Voet, 30, 31,

32, sec. 28. The principles there laid down are to the effect

that where the property bequeathed belongs to the testator

jointly with another, he is presumed to give only his ownshare

;yet where the property belongs jointly to the tes-

tator and his heir, the presumption is that the whole wasintended to be bequeathed. Now it is admitted that two-

thirds of the farm in question belonged to the testatrix andthe remaining third to the descendants of herseK and the

testator who were also the heirs of the residue of her estate.

They therefore occupied a position not identical with butanalogous to that of the Roman heir. The testatrix,

knowing that one-third belonged to her residuary heirs be-

queathed the whole of the farm to the legatees, and must be

presumed to have intended that the whole farm should pass

under the legacy. The residuary heirs are not bound byour law to part with their one-third share if they elect not

to take any part of the residue—but the executors may out

of such residue pay to the legatees the value of the one-third

share.

Judgment accordingly for the plaintiff, with costs out of

the estate. ..a

rPlalntiflf'8|Attorneys, TAlEBRlDaB, Akdeenb & Soanien.")Lnefendants' Attorneys, Eeid & Nephew. ..

,

J

92

1877.August 7.

Meperink vs.

Dieperink.

DiEPEEiNK VS. Dieperink.

Husband and wife.—Divorce.—Adultery.—Forfeiture.

On granting a decree of divorce against a wife for adultery,

the defendant declared not entitled to her share in the

community, except so far as she may have contributed any

property towards the community.

This was an action for divorce against the wife on the

ground of adultery. The declaration also prayed that the

community of property created by the marriage between the

plaintiff and defendant be dissolved, and the defendant be

declared to have forfeited all right to any part of the

common property, and aU the benefits of the marriage.

The defendant made default. The adultery was proved.

Jacobs, A.-G., supported the claim for the forfeiture, and

cited Weyers vs. Stopforth, 1 Menz., 273 ; Hablutzel vs. Hab-

lutzel, 1 Menz., 276 ; Gnade vs. Gnade, 1 Menz., 280 ; Grotius,

2, 12, 7, note ; Van Leeuwen's Com., Eng. ed., p. 484 ; Vander Keessel, Th. 88 ; Groenewegen, ad Nov. 117, c. 10 ; Voet,

24, 2, 9 ; Dutch Cons., vol. 1, cons. 334.

The CouKT granted a decree of divorce, and gave the

plaintiff the custody of the children of the marriage, and

further declared the defendant not entitled to her share ia

the community, except so far as she may have contributed

any property towards the community.

[Plaintiff's Attorney, C. C. de Villieks.]

1877.August 7.

Wiezel vs.

Wiezel.

WiBZEL vs. Wiezel.

Husband and Wife.—Divorce.—Adultery of both spouses.

Decree of divorce refused, where it was proved that the plaintiff

as ivell as the defendant had been guilty of adultery.

This was an action brought by the wife for a divorce from

her husband on the ground of adultery. The defendant

pleaded the general issue ; and also that plaintiff had herself

committed adultery. This the plaintiff denied.

93

The parties were living apart. At the trial the defendant 1877.

admitted in evidence his adultery, and the Court found that —Wi6Z6l VS.

adultery by the plaintiff had been proved. wiezei.'

The CotTRT refused the decree, and gave judgment for

the defendant, but made no order as to costs.*

fPlaintiff's Attorney, Van Ztl. 1LDefendant'B Attorney, Horak de Villiers.J

Meiring's Executor Dative vs. Meiring's ExecutorsTestamentary.

Mutual will.—Survivor.—Executor.

Husband and wife executed a mutual will, appointing the sur-

vivor and the children the heirs of the first dying. The

wife died, and the widower married again. The hushand

and second wife made a will said to he inconsistent with

the first will. The husband afterwards died. The plaintiff

was appointed executor dative of the estate of the first wife.

Held,

—

that the plaintiff, as such executor, was bound to

carry out the provisions of the will of the first wife, in so

far as it related only to property disposed of by her, and

to directions given by her ; and that his appointment did

not impose the duty or confer the right of carrying out

the provisions of the husband's first will, or of protecting

those interested thereunder ; nor did the appointment confer

on the plaintiff the right to attack the husband's second

will on the grounds of undue influence and of informality

of execution. The persons who could avail themselves of

such a right were the heirs, and they were not before the

Court.

The plaintiff was the executor dative of the late Mrs. A. 1877.

M. Meiring, first wife of the late P. J. Meiring, senior, and „ li.

the defendants (one of whom was the second wife and widow Mein^JT Bxe-

of the said Meiring) were the executors testamentary of the »" Meiring™

said P. J. Meiring, sen. Testamentary.

Mrs. A. M. Meiring died before her husband, P. J. Meiring,

* Voet, 24, 2, 6, is an authority in support of this decision.—Ed.-

94

1877. sen., after having jointly with him executed a will, by whichAugust^Q.

^j^g survivor was instituted as co-heir of the first dying, to-

Meiring^ Exe- gcther with the children of the marriage, executor of the

OT^MeMn^s wiU, and guardian of the minor heirs of the first dying.

Teftementary. After his first wife's death, P. J. Meiring, sen., married asecond vdfe, jointly with whom he executed a will, whereby

he revoked his first will in so far as he had the power to

revoke it, and instituted as his heirs his second wife, together

with the children procreated in marriage with her, to the

exclusion of his children by his first wife. P. J. Meiring,

sen., since died, and the executors under his second wiU were

called upon by this action to shew cause why the second will

should not be set aside, either whoUy or in part, in so far as

it was inconsistent with the first will, on the grounds, firstly,

that the late P. J. Meiring having adiated under the first

will was precluded from revoking that will ; and, secondly,

that the second will was obtained from the testator by undue

influence at a time when he was mentally incompetent to

execute a wiU. The defendants excepted the declaration on

the ground, amongst others, that it disclosed no right of

action accruing to the plaintiff.

Jacobs, A.-G. (with him Buchanan), supported the excep-

tions, contending that the plaintiff had no focMS standi in

such an action as the present.

Upington (with him Leonard), submitted that as the tes-

tator had adiated under the first will, that wiU was irre-

vocable, and that it became the duty of the plaintiff to see

the provisions of that will carried out in their integrity. The

second will interfered with the provisions of the first will,

and the plaintiff was therefore entitled to bring an action to

have it set aside. If he could bring such action, he could

avail himself of any grounds of objection to the will.

Cur. adv. vult.

Posted (August 14),

—

De Villibes, C.J., in giving judgment, said : In the course

of the argument, the question has been raised whether the

allegation that the testator, P. J. Meiring, sen., had adiated

under the first wiU is sufficient, in the absence of any pro-

95

vision in the will disposing of the joint property on the i877.

death of the survivor, to estabHsh the irrevocabOity of that .. i*-

•will, but in the view which the Court is disposed to take of Meirmg-s Bxe-. .,, . . cutor Dative

this case it will not be necessary to enter into that ques- ««. Meiimg's

tion. The question of more immediate importance is whether Testamentary.

the plaintiff has any lociis standi at aU for the purposes of

this suit. He claims the right of instituting this action byvirtue of his appointment as executor dative of the testator's

first wife's estate, which, he alleges, makes him the protector

of her will. Now, admitting that the plaintiff is bound byhis office to carry out the provisions of her will and to collect

all the assets of hei? estate, it by no means follows that he

has adopted the proper course for the attainment of his

objects. There is no allegation in the declaration that the de-

fendants have interfered with his duties or withheld property

which belongs to the estate which he administers ; and if there

had been such an allegation, the plaintiff's proper coursewould

have been to institute an action to restrain the defendants

from interfering with him in the exercise of his duties or to

recover the property wrongfully withheld by the defendants.

But it is sought to impeach the second will on the ground

that it revokes the first wih which the testator's own acts

had rendered irrevocable. Now assuming the irrevocability

of the first wiU, it cannot in any way be affected by that

provision of the second will which purports to revoke the

first, for this is done with the quahfication " in so far as the

testator has by law the right to revoke, cancel, and annul

the same." But then it is said that in fact some of the pro-

visions of the second will are inconsistent with some of the

provisions of the first. The only inconsistency I can discover

is that by the first wiU the testator instituted as his heirs his

first wife and her children procreated in marriage with him,

and by the second will he instituted his second wife and her

children. Now assuming again, but by no means admitting,

that the first wfil was irrevocable, its provisions could only

affect the property which belonged to the joint estate of the

testator and his first wife, and cannot in any way refer to

any property which he may have acquired after her death.

As to such after-acquired property he was clearly entitled

to institute his second wife and her children as his heirs.

If the children of the first marriage are entitled under the

first will to a share of the property left by the testator they

96

1877. may of course bring their action against the defendants, but

,. 14- their right to the property confers no right on the plaintiff

Meirings' Exe- to bring the present action. As executor dative of the tes-

vs. Meiring's tator's first wifc the plaintiff is bound to carry out the pro-

Testamentary, visions of her will, but only in so far as it relates to property

disposed of by her and directions given by her. His appoint-

ment as executor dative of her estate does not confer on himthe right, nor does it impose on him the duty, of carrying

out the provisions of P. J. Meiring's first wiU or of protecting

those interested thereunder. The second ground for im-

peaching the second will is that at the time the testator

executed it he was mentally incapable of making a testamen-

tary disposition, and that while in this condition he was

induced by the importunities, undue influence, or fraud of his

second wife, to attach his signature thereto, and that more-

over the mode of execution itself was invalid. But here

also the declaration discloses no reason whatever why the

plaintiff should be allowed to avail himseK of any of these

grounds for the purpose of impeaching the second will. Theonly persons who could avail themselves of these grounds

are the heirs ab intestato of the testator, but they are not

before the Court, nor does the plaintiff profess to institute

this action on their behalf. Under these circumstances the

Court is clearly of opinion that the exceptions already men-tioned must be allowed. The costs of this action must be

paid by the estate represented by the plaintiff.

Denysseut, J., concurred.

Exceptions allowed accordingly, with costs.

rPIaintifl's Attorney, Van Zyl. -|

LDelendant8' Attorneys, FAmBEiDSE, Akdeene & Scanien.J

OASESDECIDED

IN THE SUPEEME COUET,

1877.

VOL. VII. PART II.

Van dee Spuy vs. Maddison.

Municipality.—Qualification of Commissioner.—Ordinance

No. 2, 1844, sec. 7.

A person who had bought and received possession of a dwdling-

house within the Municipality, hut who had not, at the

date of election, obtained transfer of the same, is not a

"proprietor of immoveable property" qualified and eligible,

under section 7 of Ordirmnce No. 2, 1844, to be elected a

Municipal Commissioner.

The applicants, Van der Spuy and de Jager, ratepayers 1877.

of Beaufort West, upon notice, applied to have the election ^"f^is.

of the respondent as a Municipal Commissioner set aside, ^B^^Madlison.

on the ground of want of qualification.

On the 3rd February the respondent at pubhc auction

purchased a dweUing-house within the Municipahty of the

value. of £300, and immediately thereafter took possession,

though transfer was not passed until the 7th July. Atmeeting of ratepayers for the election of a Municipal Com-missioner held on the 26th February, at which meeting

Vol. VII.—Paet IL H

98

1877. applicants were present, the respondent, without solicitationAug^ie.

^^ interference on his part, was elected by 59 votes over

Is* Maddlon^ apphcant Van der Spuy, who received six votes. No objec-

tion of want of qualification was taken at the meeting or

afterwards until after the property had been transferred to

respondent.

Jacohs, A.-G., for the applicants, contended that as only a

person "being the proprietor of immoveable property situated

within the Municipahty of the value of not less than £300,

and no other," was, by the 7th section of Ordinance No. 2,

1844, quahfied and eligible to be elected a Commissioner,

Van der Spuy, and not respondent, ought to have been de-

clared elected. The candidate must be quahfied at the time

of election. (Raubenheimer vs. Bland and Divisional Council

of Biversdale, 4 Buch. S. C. Rep., 1874, p. 139.) The only

person who could be the " proprietor " was the person in

whom the dominium was vested by transfer.

Buchanan, for the respondent, submitted that the inten-

tion of the Legislature was to secure as Commissioners

persons possessed of landed property in the Municipahty.

There was no doubt of respondent's bona fides. He was the

real owner of the property at the time of election, and more-

over had received transfer before any objection was taken.

De Villiebs, C.J. : The first question to be decided is,

whether the respondent was, at the time of the election, the

proprietor of immoveable property situated within the

Municipahty, of the value of £300. Now it is admitted on

both sides that at the time of the election the respondent

had already purchased property to this amount, and that

subsequently he received transfer of such property. But

the question remains, whether at the time of the election he

was possessed of the proper qualification. By the law of

this Colony, no person can be said to be the proprietor of

land until he has obtained transfer. It is the transfer which

gives the dominium in property. Without the transfer, the

purchaser has only the right to claim the transfer, he is not

the proprietor of the land. So much so, that in the case of

Harris vs. Buissinne, where the purchaser had taken posses-

sion and paid the purchase price, he was, on the insolvency

of the seller, declared entitled only to prove as a concurrent

August 16.

Van der Spuy

99

creditor, but had no right to the property itself. That clearly^„^^J^

shows that in contemplation of law the purchaser does notvail ucr opuj

become the " proprietor " until he has secured the transfer. »« Maddison"

Then another question arises, namely, whether the fact that

the respondent subsequently obtained transfer did or did not

ratify the election. I do not think that the Court can, con-

sistently with its decision in the case of Raubenheimer vs.

Bland, and with the general principles of our law, hold this.

The law requires that at the time of the election the can-

didate shall be duly qualified. If it were otherwise, the law

might be constantly evaded by candidates, not quahfied at

the time of election, subsequently obtaining qualification

upon objection being raised. Under these circumstances

the election of the respondent must be declared void ab

initio.

Dbnyssen, J. : I am of the same opinion. Until a person

obtains transfer he has only a right of action, but has noright in the property itself.

Jacobs, A.-O., asked for costs.

Denyssen, J., said he could not help thinking that the

objection taken was of a frivolous nature.

Jacobs, A.-G., submitted that unless costs were given no one

would take these matters up. There was nothing to showapphcants had not acted bond fide and within their rights.

Db Villiees, C.J. : The Court is of opinion that as the

applicants as ratepayers had the right to come to the Court

under.the circumstances, they should have their costs.

Election accordingly set aside as void ab initio, witih costs.

CApplicant's Attorneys, rAiKBMDGE, Arderne & Soanlbn."]Respondent's Attorney, Van Ztl. J

H 2

(

100

Hodgson & Co. vs. Porteb & Co.

Agency.—Supporting Account.—Insurance.

Plaintiffs agreed to import all goods through defendants, to

whom a commission was to he paid. Certain goods shipped

by defendants to plaintiffs were destroyed in transit.

The defendants recovered insurances on the goods exceeding

in amount the costs and charges on the goods. Held,

—

that defendants were acting as agents of plaintiffs, and

therefore that plaintiffs were entitled to such excess, a,s on

the same grounds they would have been liable for any loss,

had such resulted.

1877. This was an action in which the plaintiffs claimed to beAug. 16.

„'

21. entitled to recover from the defendant the amount of insur-

Hoigson&co. ances received by him in respect of certain goods which

had been destroyed by fire on board the steamer Windsor

Castle.

The plaintiffs, Charles Hodgson and Andrew Steia, carried

on buisness in this Colony under the style of Hodgson & Co.,

and in London under the style of Hodgson, Stein, & Co.

The defendant, Francis Porter, carried on business in this

Colony under the style of Porter & Co. For some time

prior to November, 1873, the defendant and the plaintiffs

had carried on business together in partnership, but in that

month a final dissolution of partnership was agreed upon,

and a fresh contract entered into to regulate the future

dealings between the parties. The main provisions of this

contract, so far as it related to the present case, were the

following :

—

" Charles Hunter Hodgson, or Hodgson & Stein, as the case may be,

to be bound to import solely through F. Porter .... for which F. Porter

shall receive five per cent, commission over and above any commission

payable by P. Porter in England, not to exceed two and a half per cent.

.... Charles Hunter Hodgson, however, to have the right to name his

own purchaser, he paying the commission for such service, whether in

this case more or less than two and a, haK per cent. Francis Porter to

allow Charles Hodgson, or Charles Hodgson and A. Stein a credit of

£1 2,000 ; interest to be calculated at six per cent, on goods taken over

from the d it« of such taking over, and on London goods two months

101

before due date of London purchases, and on Cape commission from date 1877.

of arrival of goods, interest to be allowed at the same rate, and in the *^'^"^''21/

same manner for payments and prepayments in account current. CharlesHodgson, or Charles Hodgson and A. Stein, to pass bills for all goods j)s.°Porter & Cti

purchased in Cape Town from Francis Porter at six months from the endof the month, and for all goods imported by Francis Porter at fourmonths from date of arrival. All goods imported for Charles HunterHodgson, or Hodgson & Stein, to come under separate mark of Charles

Hunter Hodgson ; invoices and bills of lading to be handed to Charles

Hunt?r Hodgson, on receipt ; Francis Porter to have the right to withholdthe goods in case the stipulated credit shall have been exhausted at anytime until paid for by the said C. H. Hodgson. Charles Hodgson to havethe handling of the goods, and pay Cape charges."

Under this contract Hodgson from time to time importedthe goods required for his retail business in Cape Town, the

orders being always sent to London through the defendant,

who employed the firm of Hodgson, Stein, & Co., to pur-

chase the goods in London. The invoices and bills of lading

were sent to the defendant in Cape Town, who, on receiving

them, handed them over to Hodgson. The bills of lading

were made out in favour of Hodgson & Co., but the invoices

referred to the goods as consigned to Hodgson & Co. for

account and risk of Porter & Co. Insurances were effected

in London by Hodgson, Stein, & Co., who transmitted the

policies to the defendant in Cape Town. The plaintiffs,

upon receipt of the goods in Cape Town, drew bills for the

purchase price which, on maturity, were paid by Hodgson,Stein, & Co. in London from funds advanced by the de-

fendant, the plaintiffs paying interest at the rate of six per

cent, on aU such advances in terms of the contract. Suchwas the usual course of deaUng between the parties, whenin October, 1874, the goods now in question, consisting of

twenty-nine packages, were shipped in London on board

the Windsor Castle. Of these twenty-nine packages, twenty-

six were destroyed or damaged by fire in the London docks,

and only three arrived in Table Bay. The defendant, as

usual, sent the invoices and bills of lading to Hodgson, whorefused to sign biUs for the amount of the invoices, andreturned the invoices and biUs of lading to the defendant,

on the ground that the goods themselves had not been re-

ceived. A long correspondence ensued between the parties,

the material portions of which are referred to in the judg-

ment below. The result of this correspondence was that

102

1877. the plaintiffs received the three parcels, which had arrived

;

., 21! and they endorsed the policies and biUs of lading relating

Hodgson & Co. to the goods which had not arrived to the defendant, who' recovered the amount of the insurance payable thereon from

the insurance companies. The amount thus received ex-

ceeded the amount of the invoices, and the object of the

present action was to recover this excess after crediting

the defendant with all payments made and charges borne

by him.

U-pington (with him Jones), for the plaintiffs, contended

that the defendant was in the position of agent for plaintiffs,

and could not keep for himself any benefit derived in that

capacity. There had been no renunciation of the goods in

question made by plaintiffs and accepted by the defendant.

(Pothier on Obi, pt. 3, c. 1, art. 1, s. 3, " Release of Debts ";

Orotius, 3, 41, 7.)

Jacobs, A.-G. (with him Buchanan), for the defendant,

reHed on the correspondence as showing an absolute re-

pudiation by plaintiffs of any claim to the goods destroyed.

The defendant was not a mere agent, but a merchant whosold goods. The goods in question were never dehvered.

Cur. adv. vult.

Posted, (August 21),

—

De V1LLIEE.S, C.J., in giving judgment, said : There canbe no doubt that the position which was at first taken upby the plaintiffs was wholly untenable. The defendant wastheir agent for the purpose of importing the goods, and it

was wholly unreasonable and contrary to the contract of

1873 that he should be held Hable for any losses whichmight occur without any neghgence on his part. Uponreceipt of the invoices and biUs of lading, the plaintiffs,

knowing that some of the goods had been destroyed by fire,

and knowing that they were insured, ought to have at onceaccepted the parcels that arrived undamaged, and if theywere not bound by the strict letter of their contract to passbills for the price of goods which had not arrived, they couldnot, at all events, deny the right of the defendant to debit

103

them with the amount. The defendant, on the other hand, is^j.August 10.

upon receipt of the amount of insurance, was bound to pay » 21-

it to the plaintiffs or credit them with it. If there was a Hodgson &co.

loss the plaintiffs, as the principals, and not the defendant,

as the agent, had to bear it. On the other hand, if the

amount of the insurance exceeded the amount of the invoices

and charges, the plaintiffs were entitled to the benefit of

such excess. But the plaintiffs, before it was certain there

would be such an excess, took a widely different view of the

matter. On the 11th December, they wrote to the defendant

as follows :" The goods being imported by yourselves for

your account and risk, we have nothing to do with any profit

or loss on any shipment until the same has been placed in

our possession. The very heading of the invoices proves

this, for it distinctly states that the shipment is for your

account and risk." If, in answer to this and other letters of

a similar tenour, the defendant had accepted the position

taken up by the plaintiffs, and had agreed to take upon him-

self the hability for the goods together with any profit or loss

accruing in respect of them, the plaintiffs would certainly

not have succeeded in this Court in afterwards recovering

any profit which may have accrued. But in none of the

letters written by the defendant does he admit the correct-

ness of the plaintiffs' position. On the contrary, in aU of

them he distinctly repudiates it. On the 15th December,

1874, he writes to them as follows :" The biUs of parcels of

goods per Windsor Castle handed to you to-day were to

enable you to pay duty, and receive the three packages

which came by that vessel, so as to save any loss of market

by delay, irrespective of the question raised by you as to

liability ; and you wiU clearly understand that we hold youresponsible for the whole invoice, as charged by our Enghshagent, tfil the same be accounted for." On the same day

the defendant wrote to Andrew Stein, the plaintiffs' Londonpartner, as follows : "In the present case there will probably

be little loss one way or other, but to avoid a precedent in

future, we distinctly notify the goods are ordered and shipped

for their (plaintiffs') account and risk in like manner as youpurchase and ship on a commission for us. For the present

we debit them and credit you with the shipment as charged

to us, handing them bills of parcels to avoid loss of market

by delay with the goods as received here." After hearing

104

1S77. this extract read I listened with some curiosity to ascertain

"^ 21! whether Stein in his answer agreed with the position taken

Hodgson & Co. up by his partner or with that taken up by the defendant.o.

^^ jjijgij^ have been expected, he fully agreed with the

view taken by the defendant, and repudiated the con-

struction which his own partner had placed on the con-

tract. " I quite hold with you," he says, " that you are

only acting as agents for Hodgson & Co., in ordering and

paying for their goods. Where goods arrived damagedor otherwise, deMvery of bills of lading would bind Hodgson& Co. to grant their bih, as the goods were at their disposal

to be dealt with as they chose. Under these circumstances

I am glad, therefore, that you did not insist upon H. & Co.

giving a bill for the whole of the shipment, seeing that twenty-

six out of twenty-nine packages were re-landed here and re-

placed at once by a fresh shipment, but you were clearly

right in debiting the total amount of invoice to H. & Co.,

pending credit note. The words of the agreement being

that aU goods imported should be settled for by biUs at four

months from the date of arrival." It is difficult to under-

stand how, in the face of this correspondence, it can be con-

tended, as has been done on the part of the defendant, that

there has been a final abandonment by the plaintiffs of the

right to receive the amount of insurance in question. Mr.

Hodgson has certainly endeavoured to repudiate his liabihty

for any loss which might accrue, but the defendant had all

along denied the plaintiffs' right to repudiate their habiUty,

and in this view he had been supported by Hodgson's ownpartner, Mr. Andrew Stein. As there had been no act onthe defendant's part to render him liable to any loss, so

nothing had occurred to deprive the plaintiffs of their right

to any profit. When it finally appeared that the goods hadbeen insured for much more than their invoiced value, both

parties mutually exchanged their positions. Then the plain-

tiff Hodgson as eagerly maintained that he should be entitled

to the profit, as he had previously argued that he was not to

be held Hable for any loss. If the position at first taken upby him was untenable, the view which was finally adoptedby the defendant and urged upon the Court by his Counsel

was equally untenable. The plaintiffs are as clearly entitled

to the excess of the insurance over the invoiced value andcharges as they would have been liable to a loss if there

105

had been any. The judgment of the Court must therefore i^??.^^

be for the plaintiffs with costs. ., 21!

Hodgson & Co.

T-\_ T 1 "«• Porter & Co.Denyssen, J., concurred.

Judgment for plaintiffs accordingly, with costs.

rpiaintiffs' Attorney, Hoeak de Vii.lieks.1LDefendant's Attorney, C. C. de Villiees.J

Holland vs. Commissioner of Crown Lands andPublic Works.

Carrier.—Distance.—Contract.

The plaintiff entered into a contract with the defendant to carry

goods and produce from the railway station " to any place

within one mile of the said station," at 2s. 6d. per ton, andat an additional rate to all places beyond that distance.

Certain wool was carted by plaintiff to wool-wash establish-

ments within one mile of the station, if the distance wasmeasured in a straight line, but more than a mile by road.

Held,

—

that the distance must be measured along the road

which the carrier must necessarily travel, and that plain-

tiff was consequently entitled to the additional rate.

The plaintiff entered into a contract with the defendant

as representing the Colonial Government, to act as carting August 21

agent to the railway at Uitenhage and the Midland Hne Hoiiand««.

generally, on the terms inter alia that the plaintiff should ofCrown

without delay deliver all goods and produce from and to jpuMo works.

the stations from and to " any place or places within

one nule of the said stations, at the rate of two shillings

and sixpence sterling per ton to be paid to him by the

Colonial Government, and to any places beyond that

distance at the rate of two shillings and eleven pence

sterling per ton per mile for such additional distance, andtoUs, if any." Under this agreement the plaintiff carted

some wool from the Uitenhage station to certain wool-wash-

ing establishments. These establishments were within one

mile of the railway station if the distance was measured in

1877-

106

1877. a straight Kne as the crow flies, but more than a mile by— road. The plaintiff claimed to be entitled to 2s. lid. per

Commissioner ton iti addition to the 2s. 6d. per ton. The defendant con-

Lands and tended that the contract allowed only the 2s. 6d. per ton,

which amount they paid. The plaintiff now sued for the

£187 Os. Id., being the additional 2s. lid. per ton.

Cole (with him Upington), for the plaintiff, submitted that,

the Enghsh cases in which the word " distance " had been

interpreted to mean within a radius of a fixed spot, did not

apply here. Those were cases of contracts in prohibition of

carrying on certain trades, and the reason of the decisions

seemed to be that it was not desirable to have a shifting

distance. But in this case that reason entirely failed, as

this was a contract for work and labour to be done. Theparties must therefore be understood to have intended to

pay for the distance actually travelled. (See Lake vs. Butler,

1 Jur., N. S., 499 ; Duignan vs. Walker, 5 Jur., N. S., 976;

Mouflet vs. Cole, 8 L. R., Ex. Ch., 32.)

Jones (with him Leonard), for the defendants, contended

that there was no sound distinction between statutes and

contracts as to restrictions as to distance. In each the object

was to substitute a certain distance, capable of easy deter-

mination, for a reasonable distance, which being uncertain

would be a trap for litigation [Mouflet vs. Cole, 8 L. E..,

Exch., 34). All the reported cases adopted the fixed radius

in preference to a distance which might vary according to

the road taken, or possibly even the mode of conveyance

[Stokes vs. Grissell, 23 L. J., N. S., C. P., 140, and note 144

;

Jewell vs. Stead, 25 L. J., N. S., Q. B., 294).

De Villiebs, C.J. : No one of the authorities cited really

bears on the question before the Court. In no one of those

was it material to ascertain the distance by road. Here the

very essence of the contract is the actual distance which the

plaintiff has to travel. Reading the contract before us, I

have no doubt that the intention of the parties was that pay-

ment should be made according to the number of miles

which the plaintiff must necessarily travel. The parties

never contemplated that the distance should be taken as the

crow flies. The contract provides for the payment of

carriage at so much per ton according to distance. What

107

"distance"? Why naturally the distance necessarily travelled is??-

by the carrier. It is not alleged that the goods coiild have —V 11 111 1 Hollands*.Deen conveyed by any nearer road than the one used, commissioner

Judgment must be for the plaintiff, with costs. lands and-^ PubUc Works.

Dbnyssen, J. : I am of the same opinion. The object wehave is, to find out what was the intention of the parties

when they entered into the contract. It is quite clear to

my mind that they intended payment should be made for

the actual distance necessarily travelled.

Judgment for plaintiff accordingly, with costs.

rpiaintiff's Attorneys, Fairbkidqe, Aedebne & SOiULBN."!LDelendants' Attorneys, £eid & Nephew. J

Manuel vs. Cape Town Town Council.

Municipality.—Drains.—Negligence.—Cape Town MunicipalAct No. 1, 1861.

The Cape Town Municipality covered in a certain drain pass-

ing plaintiff's premises. This drain on several occasions

proved to be of insu/jicient size at once to carry off all the

rain water. During a heavy rainfall the water over-

flowed the drain, and' flooded plaintiff's premises. TheMunicipality held liable for the damage caused thereby.

Quaere,

—

Whether the terms of the Cape Town Municipal Act

No. 1, 1861, impose an absolute duty on the Town Council

to make and maintain sufficient drains within the Muni-cipality ; or whether the Town Council are liable only for

negligence where drains constructed by them are insufficient

or are not properly maintained.

1877This was an action for damages. The declaration filed June 20.

was, after part hearing of the case, allowed to be amended. ',', 22.'

Plaintiff's amended declaration set forth that before and juiy 12.'

at the time of the committing of the grievances complained „"*' 28.

of, the plaintiff was and still is possessed of certain stores and Manuei»«. cape

premises situated in Sir Lowry Street, Cape Town, within "counou™

108

1877. the limits of the MunicipaHty ; and that it was and still is

T^ 21.' the duty of the defendants, by virtue of their office as Town',', 2V.' Council for the Municipality of Cape Town, to construct or

Aug. le! cause to be constructed proper and suitable drains and-— '

sewers, and to keep and maintain in a proper manner andManuel »s. Cape . , i/v-i • -i- -i jTown Town m good and sufficient repair existing drains and sewers

for the discharge and carrjdng off of the rain water,

yet the defendants wrongfully and unlawfully neglected to

construct or cause to be constructed suitable drains as afore-

said, and to keep and maintain in a proper manner and in

good and sufficient repair existing drains and sewers for the

purposes aforesaid, and furthermore so negligently and im-

properly conducted themselves in and about the covering,

construction, or alteration of a certain drain in Stuckeris

Street, and kept the same when covered, constructed, or

altered as aforesaid in so improper and negUgent a manner,

and in so bad and insufficient a state of repair, and other-

wise so neglected their duty in that behalf, that the rain

water—which, if the defendants had acted lawfully and pro-

perly, would have been carried o£E from the neighbourhood

of the said stores—was dammed or thrown back ; and in con-

sequence plaintiff's stores and premises were, during the

3rd and 4th May last, flooded with water, and the stores and

goods therein were greatly damaged, to the loss of the plain-

tiff in the sum of £500 ; for which sum he prayed judgment.

The defendants filed twelve exceptions to this declaration,

to the effect that it disclosed no cause of action, that there

was no such duty upon the defendants as was alleged to

construct or keep in repair existing drains, &c. ; that the

declaration was vague and embarrassing, and multifarious;

and that the breaches of duty did not flow from the duty

alleged. The defendants also pleaded over the general issue.

Jacobs, A.-G. (with him Cole),iov the defendants, supported

the exceptions, reljiag mainly on the 60th section of the

Cape Town Municipal Act, No. 1, 1861, as being permissive

and not compulsory, as to the construction of drains, &c.

Upington (with him Hoskyns), for the plaintiff, after argu-

ment, agreed to confine his case to the question of the

damages suffered through the construction, covering, andmaintenance of the new drain by the defendants in Stuckeris

Street, and as to the maintenance of existing drains.

109

Jacobs, A.-G., for the defendants, thereupon withdrew the j^e 20.

exceptions to the declaration. •> |^-

The evidence led shewed that heavy rains fell at the be- j-j J|-

ginning of May last, and that plaintiff's stores, the floors of ^"8- ^*-

which were considerably above the level of the road drains, ,, -;— „*^ ' Manuel vs. Caps

had been flooded, a deposit of mud left on the floors, and the Town Town

goods therein injured. The plaintiff's witnesses attributed

the cause mainly to the insufficiency of a receiving drain in

Stuckeris Street, which had been covered in by the Muni-

cipaUty. The pressure of water had caused this covered

drain to burst in two places. Scientific witnesses caUed byplaintiff were of opinion that but for the constructed drains,

the natural flow of the water would mainly have been downRutger's Street and the Castle ditch, and not down Stuckeris

Street at all. The plaintiff himself stated he had occupied

the stores in question for thirty-five years, and as long as the

drains had been left open the stores had never been flooded.

The drains had been covered some eight years ago, since

which time he had occasionally suffered damage. Witnesses

were also of opinion that the flooding of the stores might

have been avoided by the construction of additional drains.

The defendants stated that new drains had not been con-

structed owing to the opposition of the War Department,

over whose property they would have to pass. The imme-diate cause of the flooding of the stores they alleged wasthe unusual and excessive rainfall, which had injured the

drains aU over the town.

Jacobs, A.-G., at the close of the plaintiff's case applied for

absolution from the instance, which was refused, arguing

then, and again after hearing the whole case, that there wasno absolute duty as alleged upon the Town Councfl, and that

they were at most answerable only for acts of mis-feasance

and not of non-feasance. He cited Abbott on Corporations,

p. 532 ; BvXlen and Leake, 2nd ed., p. 589 ; Rogerson N. 0. vs.

Meyer and Berning, 2 Menz., 38 ; Cape Town Municipal Ee-gulations, " Abating Nuisances," Reg. No. 15 ; Ordinance

No. 9, 1836, sec. 36 ; Gautret vs. Egerton, L. R. 2 C. P., 371.

As to amendment of declaration see Story^s Equity Pleadings,

886, 887, 889 (n.) ; Mitford's Equity Pleadings, 5th ed., pp.

67, 68, 387-9, 394-5; Watts vs. Hyde, 2 Phillips, 406;Wright v.s. Howard, 6 Mad., 106 ; Daniel's Chancery Prac,

3rd ed., 291, 293.

110

jg^jUpington, for the plaintiff, contended that the defendants

June 20. were appointed to carry out the powers entrusted to them,••'

if and they were bound to act for the pubhc benefit. At all

J^yif events, where they did make drains, and hmited their

" ^8- capacity by covering them in, the Commissioners wereManuel vs. Cape bound to have such drains of sufficient capacity to meet allTown Town jt-» m t i

Council. requirements. He cited Addison on Torts, 4th ed., pp. 30,

738 ; Whitehouse vs. Fellowes, 30 L. J., C. P., 305 ; Dwarris

on Statutes, 2nd ed., pp. 604, 671. As to power of amendmentsee Boscoe's N. P., 12th ed., 285 ; Parson vs. Alexander, 5

E. & B., 263.

Cole, at a subsequent hearing, argued further for the de-

fendants, that they had exercised all reasonable and ordinary

care ; and that the flooding was caused by an unusual and

not reasonably to be expected downpour of rain.

De Villiees, C.J. : In this case two questions of some

importance have arisen, first, whether the Municipality of

Cape Town is bound by its constitution to construct drains

and other apphances to coUect and carry down to the sea all

the water that may possibly fall in Cape Town and the

neighbourhood. This question was very well argued on both

sides, but does not caU for a decision, inasmuch as the second

question is decisive of the case. That question is, whether,

if the Town Council do construct drains and other apphances

for carrying off the water, it is not bound to construct themin a proper manner. I have no doubt that where the TownCouncil does take upon itself to perform certain work,

whether gratuitously or not, and, performs it in a negligent

and improper manner, it is hable for the damages that mayresult. The question of fact for decision, therefore is,

whether or not the works complained of were so negUgently

and improperly constructed as to cause the damages done

to Mr. Manuel's premises. I have no doubt this question

must be decided in favour of the plaintiff. It has been

abundantly proved by the evidence that so long as this

drain in Stuckeris Street remained open, it carried off

all the water which accumulated in the neighbourhood of

the plaintiff's premises, but that when it was covered in it no

longer did so. The water flowed also over Mr. Louw's pre-

mises and did damage there, but Mr. Louw is not before the

Court. So long as this drain was open, it was large enough

Ill

to carry off all the water from plaintiff's premises. I think t^^^2o

that the Town Council, wishing to improve plaintiff's neigh- » |i-

bourhood, covered up this drain, but they did so improperly ^^ 2|-

and in such a manner as to render it unable to carry off all Aug. le.

the water from the neighbourhood. Then, a point at the

,

-.— „°1 T. p n Manuel vs. Cape

corner of Sir Lowry Street and Reform Street was the Town Townt 1 t 1 -HI Council.

lowest pomt m the dram, and to that point all the water

converges from the surrounding drains, and the result is

that the water which converges there is carried in the direc-

tion of plaintiff's premises in Sir Lowry Street, which are

flooded. It has been clearly proved that this is not the first

flood which has visited the neighbourhood, and that it wasonly after the drain had been covered up—and, as I hold,

neghgently and improperly covered up—that damage first

occurred there, as there was not sufficient outlet a"^ the

mouth of the drain to release the surplus water. One wouldthink that the defendants, whose duty it is to look after the

interests of the householders and ratepayers of this city,

would have done something to this drain to provide for such

a contingency, knowing as they do, that the town is subject

to heavy rains and floods ; but nothing more was done than

to cut a few holes in the wall of the market to let the water

through. That is the way in which a pubhc body Hke the

Cape Town Municipahty attempted to meet this serious

emergency. My opinion is that the Town Council ought

long ago to have constructed a proper drain to meet andcarry off this water. It was argued by Mr. Cole that this

was a most extraordinary flood, and he even went so far as

to compare it with an earthquake or a tidal wave, intro-

ducing the principle of vis major. But we have not hadtidal waves in this part of the world, and the shocks of

earthquake we have occasionally had have not been severe.

On the other hand it has before happened that the rainfaU

has been as great as it was during the flood in question

;

and one of the witnesses said that within the last five years

he had known a rainfall in Cape Town equal to that of 1872.

But it was said there is a difficulty in estimating the rainfall

because there was no rain-gauge. Mr. Simpson, however,

says that in 1872 there was a rainfall of 2| inches in eleven

hours, and in the present instance there was a rainfall of

only If inches to be provided for. I think that when the

Town Council does take upon itself to construct drainage

112

jumm. ^ovks, it must construct them in such a manner as not to; 11;

throw the water on the premises of ratepayers and house-

jiiy Ikliolders. It is clear to me that the defendants are liable for

"^^28; ^^y damages sustained by the plaintiff to the goods in the

Manuel «,. cape^^^^- ^ ^^"^ i* is also clearly shewn that the damage sus-

^cSSn^r ^^^^^^ by plaintiff amounts to £140 13s. 9d. ; but as to thedamage done to plaintiff's premises the evidence does notseem quite clear. Mr. George Manuel produced an accountof these damages, but neither his evidence nor that of anyother witness shews that these damages were entirely causedby this flood, and the only witness competent to express anopinion could not say whether or not they might not havebeen caused before the flood took place. I think, therefore,that as there is no proof of the latter claim, judgmentshould be for the plaintiff for £140 13s. 9d., and costs.

Denyssef, J. : As the records originally stood, two ques-

tions of great importance were raised,—^first, as to the dutyof the Town Council to make such gutters and drains

as are necessary for the protection of the inhabitants of

the city ; and, second, as to their duty in respect of

drains which have already been made, or which mayhave been covered in by them. The first contention

having been given up, the second question alone remains to

be considered. I cannot help thinking that the first point

having been given up is much to be regretted ; for it is as

necessary for the pubUc as for the Town Council to knowwhat their habflities are, and I beheve the defendants were

as anxious on this point as the pubHc generally could be.

There is no mistake the fact that as soon as a house or store

is built in Cape Town, the Municipahty takes good care to

place it on the list and to tax it ; and is not every person

so taxed entitled also to protection so as to prevent his

property from being undermined or otherwise jeopardised ?

That question, however, does not now arise. The issue re-

maining to be decided by the Court is, whether this Stuckeris

Street drain, having been made, as appears from the evi-

dence, in an inefficient way by the Town Council, so that it

could not carry off all the rain water, does not render the

defendants liable for the damage consequent upon their own

acts. There may be another question whether the Town

Council are not bound to abate nuisances and to make and

113

pave drains necessary for that purpose, but that question i877.

we cannot now consider. I concur entirely with the Chief ^^2.1.

JtrSTicE that the defendants are liable for the damages re- ',', in.

suiting from their acts in connection with the Stuckeris Street au| is'.

drain. I think they have been proved guUty of neghgence, '^-^'

and that they must pay plaintiff the amount of loss he has ^^^o^^o^Tin consequence suffered.

council.

Judgment accordingly for plaintiff, for £140 13s. M.,with costs.

LPlaintiff's Attorneys, Keid & Nephew. "|

Defendants' Attorneys, FAmBBlDSE, Abdbenb & Soanlen.J

Booi vs. Blake.

Magistrate's Court.—Demand before Summons.

Plaintiff sued defendant in the Magistrate's Court for damages

for false imprisonment. At the hearing the defendant

excepted that no demand had been made before summons.The Magistrate sustained the exception, and dismissed the

case. On appeal, exception overruled.

The plaintiff sued the defendant in the Com-t of the Resi- 1377.

dent Magistrate of the Knysna, for £20 damages for false .— '

imprisonment. At the hearing the defendant excepted that

no demand had been made upon him for the amount sued

for. The Magistrate sustained the exception, and dismissed

the case, with costs of suit. The plaintiff now appealed.

Upington, for the plaintiff, submitted that the Magistrate

had made a mistake. The absence of a demand could at

most have affected costs if there had been a tender made.

The defendant did not appear.

The Court reversed the Magistrate's decision with costs

both on appeal and in the Court below, and remitted the

case for trial on the merits.

Plaintiff's Attorneys, Faikbkidge, Ardekne & SOANiETf .1

Vor- VII.—Paet IIj I

114

Stellenbosch Bank vs. Madee.

Provisional Sentence.—Notarial Protest of Dishonour.

Provisional sentence refused against the endorser of a pro-missory note, the only proof of dishonour being by affidavit,

and it appearing that there was a resident Notary Publicwho might have been employed to protest the note.

Nov! 20."^^^ plaintiffs claimed provisional sentence against the

steii^oJch'l^f^ndant as endorser of a promissory note, dated 22nd May,

BankDs.Mader. 1871, duo 22nd August, 1871, made by one Wege in favourof defendant, and endorsed in blank. An affidavit was filed

alleging that there was no Notary in SteUenbosch when thenote fell due, and that notice in writing of dishonour hadbeen given by the cashier of the Bank, and left at de-

fendant's house with one of his servants.

Defendant denied receipt of notice, and alleged that there

were two Notaries resident at SteUenbosch at the time the

note fell due, now six years since, viz., one Blommestein,

and one Korsten since deceased. The maker, Wege, hadbeen chairman of the Bank, and had recently committed

suicide. There had been defalcations at the Bank.

Plaintiff replied that Korsten was in a bad state of health

at the time, and could not attend to his duties, and that

Blommestein had been previously dismissed from his post as

Notary to the Bank.

Stockenstrom, A.-O., for the plaintiff, prayed provisional

sentence.

Jones, for the defendant, opposed, and cited Anderson vs.

Hutton and Woest, 1 Menz., 75.

De Villibrs, C.J. : Where there is a Notary Public,

he is the person who must be employed to give notice

of dishonour, and for this reason, that he is a public and

responsible officer, and is required to keep a record of his

official acts in books kept for the purpose, and in this way

future questions are avoided as to whether or not notice has

actually been given. In the present case I am satisfied

there was at least one Notary available, and I am incHned

to think there was even a second. Under these circum-

115

stances, as the plaintiff has not chosen to comply with the is"Nov. 20.

requirements of the law, provisionalsentence must be refused,°~

with costs. The plaintiff, however, will have hberty to go Banks*. Mader.

into the principal case, if so advised.

Denyssen, J., and Fitzpatrick, J., concurred.

Provisional sentence accordingly refused, with costs.

rPlaintiffs' Attorney, Horak de Villiers.1LDefendant'9 Attorney, C. 0. db Villieks.J

Le Stjeur vs. Geary.

Defamation.—Criminal Prosecution.—Magistrate.—Jurisdiction.

Libels of an aggravated nature are crimes by the law of the

Colony.

The applicant, having obtained a certificate from the Attorney-

General that he declined to prosecute, took out a criminal

summons calling upon the respondent to appear and abide

by the judgment of the Magistrate's Court upon a charge

of libel. On the day of hearing applicant requested the

Magistrate to take a preparatory examination instead of

trying the case. The Magistrate refused, whereupon ap-

plicant applied to the Supreme Court for an order to

compel the Magistrate to hold such examination. Held,

—

that as the applicant had instituted a summary proceed-

ing, the Magistrate was justified in refusing to change the

trial inio a preparatory examination.

The respondent Geary, the editor and printer of a satirical 1877.

paper called the Lantern, published defamatory remarks *y '

21!

regarding the appHcant, inpugning his honesty. Apphcant xov.' 26.

laid an information against respondent. The Attorney- lesueMra.

General informed applicant that he saw no reason to depart

from the practice of his predecessors, who had invariably

dechned at the pubhc instance to prosecute criminally

I 2

Geary.

116

sep"i7.persons charged with defaming the characters of private

Oct. f.'P^J^sons, but suppUed apphcant with the necessary certificate

Nov^o. to enable him to prosecute privately.

^°&"."* Apphcant thereupon apphed to the Magistrate of CapeTown for a warrant against respondent, in order to have himcriminally brought to trial for the alleged hbel, but the

Magistrate dechned to grant such warrant. Thereafter the

apphcant took out a summons requiring respondent to

appear personally before the Magistrate's Court on the

17th September, to answer and abide the judgment of the

said Court for the hbel upon apphcant. When the case

was called, but before the respondent was called upon to

plead, the apphcant's attorney stated that the object of the

summons was to have a preparatory examination taken, andthe respondent committed for trial. The Magistrate de-

chned to go into the case with this object, and said he would

retain to himself the right of passing sentence at the con-

clusion of the hearing. Apphcant's attorney submitted that

the Magistrate had no power to pass sentence on a case of

libel of such a serious nature, and that only the Supreme or

Circuit Court had jurisdiction. The Magistrate, however,

adhering to his opinion, the charge was not proceeded with,

but applicant's attorney obtained from a Judge in Chambers

a conditional order calling upon the Magistrate to shew

cause why he should not take a preparatory examination

and commit for trial the respondent. On the return day,

the Judge in Chambers, Mr. Justice Fitzpatrick, postponed

the hearing till the first day of term, before the fuU Court,

meanwhile requiring the respondent to give security for his

appearance. At first respondent failed to comply with this

order, and another apphcation was made for his committal

for contempt of Court. Upon this being granted security

was found. Respondent gave notice that he would move the

Court to set aside both the provisional order and the several

orders as to security.

Upington (with him Buchanan and Leonard) moved to

have the conditional order made in Chambers confirmed.

Cole, for the respondent, shewed cause, and also apphed to

have all the orders made in Chambers discharged. He

contended that the whole course of procedure taken by

apphcant's attorney had been irregular. Instead of going

117

to the Attorney-General in the first instance the proper i877Sept. 17.

course would have been to have called upon the Clerk of .. ziGot. 3.

the Peace to have a prehminary examination taken. If he Nov.' 26.

had refused he might have been compelled to do his duty, lesueurw.

It was only after a preparatory examination had been taken^"^"

and the evidence submitted to him, that the Artorney-General could decide whether or not he would prosecute.

The application for a warrant was another mistake, and wasproperly refused by the Magistrate. When appHcantelected to take out a summons caUing upon the respondent

to appear and abide by the judgment of the Magistrate's

Court, the Magistrate was bound to proceed with and to

hear the case. As the applicant did not proceed, respondent

could have claimed his discharge. The order of the learned

Judge in committing respondent for contempt should not

have been granted, as disobedience of a Judge's order in

Chambers was not contempt of Court. The respondent

moreover ought never to have been called upon to give

security. It was only where there were actually criminal

proceedings going on that the accused could be held to bail

(Ordinance No. 40, 1878, ss. 6, 7, 14, 27, 29, 43, &c.). Butit was a question whether libel was a criminal offence at all

in this Colony. There was no record of a criminal prose-

cution for Ubel in the Supreme or Circuit Court except for a

Ubel on a Governor, and that was on a different footing from

a hbel on a private person. It is true that some thirty

years ago, one De Lima was tried by the Magistrate of Cape

Town and convicted ; but on his appeahng to the SupremeCourt the case went off on a technical point.

[Dbnyssen, J. : There was also the case of Edwards, in the

time of Lord Charles Somerset.]

Neither of these cases could be taken as settHng the law.

Van der Linden, p. 340, would seem to indicate that de-

famation gave rise to a civil remedy only. If it was a crime,

the Magistrate had jurisdiction under the 42nd section of

Act No. 20, 1856.

Upington, for the apphcant, as to the first contention, that

the proper procedure had not been followed, submitted that

the 8th section of Ordinance No. 40, placed prosecutions

absolutely under the management and control of the

Attorney-General. The Attorney-General could therefore

at any time intimate that he declined to prosecute, and it

118

se"t"iV."^^^ ^^^ necessary first to go to one of his subordinates. The

Oct. I!'Attorney-General having given his certificate, the appHcant

Nov^o. gained a locus standi. That being so he had a right to go

"^'oeTy."'- *° *^^ Magistrate, and if the Magistrate refused to act, hecould be compelled to do his duty. By section 6 ofOrdinance No. 73, it was not necessary to get a certificate

before commencing a prosecution in an inferior Court. Therespondent was summoned to abide the judgment of theMagistrate's Court because it was necessary, by section 5, ofAct No. 15, 1864, that there should be a commitment fortrial by the Magistrate before the trial in the SupremeCourt could take place. As to the question whether theMagistrate had any jurisdiction to try this case, by section 44of Act No. 20, 1856, his ordinary jurisdiction was limited tocrimes not punishable by death; transportation or banish-ment. No special statutory jurisdiction had been given to

Magistrates to try the crime of hbel. The proper test to

apply was, the extreme Hmit of punishment which could begiven for the offence. (See Proclamation of 2nd September,

1816.) In the Qv£en vs. Heynes in 1867,* it was held that

as the limit of punishment was beyond the Magistrate's

jurisdiction, he could not try an offence against the old

Game Law Proclamation. By the Placaat of 7th March,

1754 (Groot Placaat Boek, vol. 8, p. 570), the punishment

for pubhshing riotous and scandalous lampoons, &c., was a

fine of 3000 guelders for the first offence, and to arbitrary

punishment in addition, and for the second a fine of 6000

guelders and banishment. This shewed that Hbel was

beyond the Magistrate's jurisdiction, as well as that it was

a criminal offence. (See also Voet, 47, 10, 15 and 16

;

Carfzbvius, qusest, 94, vol. 2, p. 409.) The applicant,

moreover, had the right to choose his own forum, and he

desired the case tried before the Supreme Court. Public

poHcy required the punishment of defamation, and if the

offender was liable only to a civil action to damages,

punishment would be avoided by any vindictive man of no

means. The offence was constantly punished criminally in

England.

Cole, in reply, contended that the applicant had chosen

his own forum by taking out a summons caUing upon re-

* Since repotted as Regina vs. Heynes, 1 Roscoe, 438.

—

Ed.

119

spondent to appear and abide the judgment of the Magis- is??.

trate's Court. *,? '

21!Get. 3.

Nov. 20.

De Villiers, C.J. : A great many questions of impor- Le sueur »»,

tance have been raised during the discussion of this case,

but it will be unnecessary for the Court to decide all of

them. If it had been necessary to enter into all these

questions, I should have preferred to have taken time to

consider my judgment. As the matter stands, we have to

consider in the first place the jurisdiction of the Magistrate

with regard to cases of libel. I have no doubt, and mybrother Judges agree with me, that hbels of an aggravated

nature are crimes by the law of the Colony. But this case

may be decided quite independently of that, upon a very

simple.ground. The prosecutor, Mr. le Sueur, first of all

appMed for the certificate of the Attorney-General stating

that he declined to prosecute, and having obtained this he

went to the Magistrate, and requested him to issue a

warrant for the arrest of the respondent for the purpose of

having him criminally prosecuted. The Magistrate refused

to grant the warrant. If, upon this refusal, the prosecutor

had applied to the Court or to a judge in Chambers, I amnot prepared to say what order would have been granted.

But instead of that the prosecutor chose to take out a

summons calling upon respondent to appear in the Magis-

trate's Court, and then proceeded to indict the respondent

in the same way as the Attorney-General would have done,

not for the purpose of having a preliminary examination

taken, but for the purpose of standing his trial in the

Magistrate's Court, and of abiding the judgment of that

Court upon his complaint. I have referred to the forms,

and I find that the prosecution has adopted the very form of

summons required in a case under the summary jurisdiction

of the Magistrate. So that in effect there was an indictment

which the respondent was called upon to appear to and to

stand his trial upon. The Magistrate says, " I will proceed

to hear your case." But the prosecutor's attorney objects to

that, and demands that a preparatory examination be taken.

There, I think, the attorney was entirely wrong. Having

elected to proceed under the Magistrate's summary jurisdic-

tion, he was bound by it. It was not in his power to compel

the Magistrate to change the trial to an examination. I

120

sep"n. therefore think the Magistrate was perfectly correct in the

6'ot.l^'view he took of the case. Upon this simple ground then, I

Novjo. am of opinion that the conditional order of the Judge ini-^snemvs. Chambers ought to be discharged.

Denyssen, J. : I am of the same opinion. There areseveral questions of a very important nature raised, whichat some future time it may be necessary to have decided. Ihold a very decided opinion upon them, though I do notthink this is the time to give expression to it. The casenow before us is this, that the apphcant having selected hisown forum, is bound by it. He elected to go before theMagistrate, and he must let the Magistrate give his

decision.

FiTZPATEiCK, J., concurred.

Orders discharged accordingly, with costs.

rApplioant's Attorney, Van Zyi. "|

LKespondent"8 Attorneys, Ebid & Nephbw.J

Standard Bank vs. Goodchild & Beittain.

Provisional Sentence.—Partnership.

Provisional sentence granted against both partners of a firm,

upon a bill of exchange drawn in the name of the firm by

one of the partners, not for a firm debt, but discounted

bona fide by the plaintiffs.

1877. Both defendants formerly traded under the style or firmNov. 22.—^ ' of Goodchild & Brittain. During the subsistence of the

standard Bank ,.i -n r i i ijjjj.

vs. Goodchild partnership a biU of exchange was drawn by defendantand Brittain. 7-i i i .i i » n

Goodchild as follows :

" Cape Town, May 22nd, 1877." £35 Us. 9d.

" Sixty days after sight, please pay to the order of Mr. A. T.

Goodchild the sum of thirty-four pounds fourteen shillings and nine pence

sterling. (Signed) Goodchild & Beittatn.' To Mr. Geoege Manning,

" Diamond Digger,-" Du Toit's Pan, Kimberley.

" (Endorsed) A. T. Goodchild."]

121

This bill was discounted by the Standard Bank, and the^ov^ 22

proceeds paid to defendant Goodchild, as endorser. ThestandMd'Bank

payee was not at home when the bill was presented for"''iBritt^^

acceptance on 2nd June, and it was consequently protested.

On due date the bill was presented to Manning personally,

who refused to pay. The Bank then sued defendant Brittain

upon the bill in the Magistrate's Court for Cape Town, when,

after going into the case and hearing the evidence, the

Magistrate granted absolution from the instance with costs.

Plaintiffs noted an appeal, but subsequently withdrew it, andnow sued both Goodchild and Brittain for provisional sen-

tence in the Supreme Court.

Defendant Brittain made affidavit to the effect that the

biU did not bear the usual signature of the firm, nor

was it signed for any debt due by the firm or byBrittain individually, or given in the course of partner-

ship business, or given with Brittain's consent, and that

neither the firm nor Brittain received any consideration

for the bUl.

The Manager of the Bank deposed that the firm had kept

an account with the Bank as well as an account kept by Good-child. That both partners had signed their names in a bookkept for reference, and that deponent beheved the signature

to the bill to be that of Goodchild for the firm. That the

endorsement was Goodchild's, and on the discount of the

bill in the ordinary course of business the proceeds were

placed to the credit of Goodchild's account, and were drawn

out by him.

Stockenstrom, A.-G.,ior the plaintiffs, prayed provisional

sentence.

Buchanan, for defendant Brittain, opposed. On reference

to the original bill it would be found that the signature was" Goodchild & Bittain," not " Goodchild & Brittain." This

and the unusual procedure of a firm drawing in favour of one

partner should have put the Bank on enquiry. The impUed

authority of a partner was to draw only for partnership

purposes, and in the course of partnership business {Kirk

vs. Blurton, 9 M. & W., 284).

Stockenstrom, A.-6., for the plaintiffs, cited Byles on Bills,

10th ed., p. 43. The name to the bill was substantially

that of the firm [Faith vs. Richmond, 11 Ad. & E., 339).

122

Nov' 22^^ ViLLiERS, C.J. : Provisional sentence must be granted.

„^ ,—7-„ , It is quite correct to state that as between themselves onestandard Bank ^»«• Goo.dchiid partner has no authority to draw bills or make promissory

notes in the name of the firm, except for partnership pur-

poses. But a Bank may lawfully take and discount a note

made by a member of a trading firm in the usual way in

which its partnership notes are made, unless there appears

on the face of the note or from some other circumstance

known to the Bank that there is something fraudulent in the

transaction, or unless the Bank is aware that the note hadbeen made for a private debt. There is nothing here to

lead the Bank to suspect any fraud, nor had they any notice.

They discounted this note in good faith, and they are

entitled to judgment against both members of the firm,

leaving them to arrange their differences between them-

selves.

Denyssen, J., and Fitzpatbick, J., concurred.

Provisional sentence accordingly, with costs.

CPlaintifls' Attorneys, FAiEBKiDaE, Akdekne & Soanlen."]DeJelidaut'3 Attorney, Diokson. J •

,

Be Caiknceoss.

Attorney.—Misconduct.—Suspension from Practice.

A Judge of his own motion called upon an Attorney to shew

cause to the Supreme Court why he should not be struck off

the roll, in consequence of circumstances which transpired

at a criminal trial.

An Attorney suspended from practice for misconduct in not

accounting for moneys received by him for a client,

TMtwithstanding that such Attorney had been criminally

tried and acquitted of the theft of said money.

1S77Nov. 20. Messrs. Jones & Co., a firm of merchants carrying on

',', 27.' business at Mossel Bay, had instructed respondent Cairn-

Be cairncrcas. cross, an attorney and Notary Pubhc practising at that

27.

Se Caimoro89.

123

place, to recover an overdue promissory note for £83 19s. 2d. i877.

Respondent received the amount, but instead of paying ^?7'22'

bhe money over, after some delay gave Messrs. Jones & Co.bis cheque on a Cape Town bank, which cheque on pre-sentation was dishonoured. Messrs. Jones & Co. laid aninformation against respondent, who was tried beforeDe Villibrs, C.J., at the next sitting of the CircuitCourt for Mossel Bay, for the theft of the money. Thejury acquitted the respondent, the foreman remarking thatbhey considered he had been sufficiently punished. Thepresiding Judge thereupon called upon respondent to shew3ause in the Supreme Court on the first day of the nextterm, why he should not be struck off the roU of Attorneysind Notaries practising in the Colony, by reason of thefacts appearing in the evidence taken at the criminal trial.

A written notice to the same effect was, at the direction

of his Lordship, given by the Registrar of Circuit to

respondent.

On the first day of term (November 20),

—

Buchanan,iov the respondent, applied for a postponement,iS certain papers had not yet come to hand.

De Villiers, C.J., pointed out the desirability for the

jstabhshment of some body to take up cases of this kind.*

is it was, it was left to the Court to take the initiative.

Ee would be glad if the Attorney-General would look overshe papers and act as he thought fit.

Posted, (November 22),

—

Stockenstrom, A.-G., wished to know if it was necessary

or him to frame any charge, in addition to the notice

rhich had been given by the Registrar of Circuit. InSngland the practice appeared to be to present a petition,

'^erified by affidavit.

De Villiers, C.J. : Under the circumstances the notice

* Since then the Incorporated Law Society's Act, Noj 27, 1883, has

een passed,

—

Ed,

124

1877. given by the Registrar will stand in lieu of a petition. The"

.. |2- Judge's notes made at the trial could be used.

Re CaimcrosB.The respondent filed an affidavit, in which was set forth

that he had an account with Messrs. Jones & Co., having

been frequently employed by them, and that on receipt

of the amount of the promissory note he had placed the

money to their credit in his books ; and that in the ordinary

course of business he had given them a cheque on CapeTown, fully anticipating to have funds at the bank ; andthat it was in consequence of the proceeds of a certain bill

of costs not having been placed to his credit that the

cheque was dishonoured, and that it was while he had cometo Cape Town to enquire into the matter that criminal

proceedings were instituted. That the complaint had been

laid by the manager of Jones & Co. as he had heard that

respondent was about to leave the Colony, and that the said

manager did not beheve respondent had any fraudtdent

intention. That respondent had no fraudulent intention,

and as soon as the trial was over, he had settled the matter

with Jones & Co. That respondent was a married man with

a family, and was solely dependent on his profession for the

means of support.

De Villiees, C.J., said the gravamen of the charge

consisted in the fact ehcited at the trial, that respondent as

an attorney of the Court and Notary Public was employedto collect certain money which he got in on the 6th

February. Three days afterwards he was asked about the

note and he stated he had not yet received the amount.Subsequently on being again asked, he said he had received

from the debtor a promissory note which he could not get

discounted. There was no such note, but he had actually

received the full amount due in cash.

Buchanan, for the respondent, submitted that all these

facts had been placed fuUy before the jury at the trial, andthey had acquitted respondent. This was in effect trying

respondent over again. In England the Courts would not

call upon an attorney to show cause if he was charged with

an indictable offence, but would refer the matter to a jury

(Anon., 5 B. & Ad.. 1088 ; Anon., 3 N. & P.. 389). Mere

Se Caimcross.

125~ q - -- -

)n-payment of money, in the absence of criminal intent, wast^^^'^o'o

)t a cause for striking off the roll {Guilford vs. Sims, .. 22.

5 C. B., 370). " "Stockenstrom, A.-O., contended that the Court was not

recluded from interfering by the verdict of the jury. It is

robable that if there was to be a criminal trial, the Court

ould first await the result, so as not to prejudice the

jcused. The Enghsh Courts, however, had interfered

Ithout a trial, even although the matters complained of

light amount to an indictable offence {Stephens vs. Hill,

M. & W., 28). The public should be protected against

rofessional misconduct.

Buchanan, in reply, submitted that the Courts would not

iterfere after an acqtiittal by a jury.

De Villiees, C.J. : It is quite clear that an attorney

lay be struck off the roll for misconduct which does not

mount to a crime. I do not wish to impugn the verdict of

he jury, nor to overlook the remark of the foreman that

hey considered the respondent had been sufficiently

lunished. We do not propose to punish the respondent

or the crime of theft, of which he was acquitted by the

ury. But we cannot allow an attorney the privileges of

lis position who has so misconducted himseH as to receive

aoney for a cUent, then to deny having received it, after-

wards falsely to represent that he had been paid by a

)romissory note which he could not get cashed, and at

ength to give a cheque on a bank where he had no funds.

;t is utterly impossible for any Court to overlook such

ionduct in one of its officers. It might not be conduct on

irhich a jury might convict of theft, but at all events it is

;ufficient cause to warrant the Court in saying that such a

jerson should not be allowed to continue to practise as an

ittorney. If the jury had brought in a verdict of theft, the

jourt would no doubt have struck the attorney off the rolls,

n addition to his punishment for the offence. Taking into

jonsideration all the circumstances that are in favour of

respondent, the Court will suspend the respondent from

practice, but will give him Hberty to apply for leave to

resume practice in two years' time. It does not necessarily

tollow that even then the Court will order his re-admis-

sion.

126

1877.Nov. 20.

„ 22.

„ 27.

Re CaimcioBS.

Denyssen, J. : The respondent's conduct having beenbrought before the Court, the Court is bound, in the pubhcinterest, to take notice of it. An attorney is an officer of

the Court, and the Court must protect the pubhc not only

where the attorney commits a crime, but where he is guilty

of improper conduct. We are not now trying the criminal

charge, but we are censuring the misconduct ; and a charge

of graver misconduct has not, within my recollection, ever

been brought to the notice of the Court. Personally, I

would have been prepared to have taken a more serious viewof the charge than the Chief Justice has done, but as hetried the charge against respondent, I wiU not press myopinion.

f FiTZPATEiCK, J. : At first I felt anxious about interfering

after the acquittal of respondent, as I think we should bevery careful not to trench on the independence of juries.

But on giving the matter further consideration, I think

there is a substantial distinction between the personal

misconduct of the attorney and the criminal charge brought

against him. I concur in the order for respondent's suspen-

sion in the terms stated by the Chief Justice.

Ordered accordingly, that respondent be suspended from

practice, with leave to apply to the Court after the lapse of

two years.

[Respondent's Attorneys, Chkistie & Du Pkeej.]

Van Niekeek vs. Baebee.

1877.Nov. 2!i

Van Niekerl-!)S. Barber.

Magistrate's Court.—Messenger.—Horse Hire.

The 8th section of Act No. 9, 1857, authorising the Magistrate

to fix a reasonable horse-hire to be allowed to the Messenger

of the Court, is in effect repealed by the Tariff of Fees

fixed by the Rules of Court promulgated under the au-

thority of Act No. 21, 1876, section 7.

In consequence of the distances to be travelled by the

Messenger of the Magistrate's Court for Namaqualand, and

127

E the characteristics of the district, the respondent Barber, ^1®'%

s acting Resident Magistrate, on the 9th August, 1877, by —r-

a order of Court, fixed that for the future the Messenger »«. Barter.

tould receive double horse-hire for the service of processes

eyond six hours' distance from the seat of Magistracy. Thepphoant, an attorney practising in the Court, at first paid

the Messenger, respondent Loeffler, double horse-hire on11 processes issued by him. Having the charge questioned,

pphcant, when he next required a summons served, lodged

he fees including single horse-hire only at the rate fixed byhe Tariff of Fees authorized by Rules of Court promul-

;ated on the 8th January, 1877, framed by the Judges of

.he Supreme Court under the authority of the 7th section of

^ct No. 21, 1876. Respondent Loefiler refused to serve the

jrocess. AppHcant on notice called upon the Magistrate to

shew cause why his order as to double horse-hire should not

be declared Ulegal ; and called upon the Messenger to shew

jause why he should not be ordered to serve the process on

payment of the fees fixed by the Tariff.

Buchanan, for the appUcant, contended that the power of

fixing the fees to be taken in the Magistrate's Courts was

now vested in the Judges ; and that the charges allowed by

the Tariff contained in the Rules of Court of 8th January

last, promulgated under the authority of Act No. 21, 1876,

were the only charges wMch the apphcant was required to

pay, or which he could recover as costs. The order of the

Magistrate was therefore illegal.

Stockenstrdm,A.-G.,ioT the respondents, contended that by

the 8th section of Act No. 9, 1857, the Magistrate was

authorized to fix a reasonable horse-hire to be paid to the

Messenger. Considering the special circumstances of the

district, the amount fixed was very reasonable. This section

of Act No. 9, 1857, had never been repealed.

De Villibes, C.J. : The Magistrate's Court Act No. 20,

1856, had made no mention of horse-hire to be paid to

Messengers, and accordingly the 8th section of Act No. 9,

1857, empowered the Magistrates of the different districts

to fix a reasonable horse-hire to be allowed to the Messenger.

In 1876, the Legislature passed another Act, viz., No. 21,

1876, the evident intention of which was to place in the

128

1877.Nov. 22.

Van Niekerkvs. Barber.

hands of the Judges of the Supreme Court the duty of

fixing the fees to be paid to the agents, clerks, and other

officers of the Magistrate's Courts, including the Messenger.

By giving this power to the Supreme Court, the Legislature

must have intended after the passing of that Act to deprive

the Magistrates of the power previously vested in them.

The Supreme Court has acted upon the power vested in it,

and has revised the TarifE of Fees, and fixed a new Tariff. I

was at first impressed by the argument of the Attorney-

General that the Legislature had never repealed the 8th

section of Act No. 9, 1857, and that it was reasonable to

suppose that the Magistrates of the several districts wouldbe best able to know what was a reasonable charge for

horse-hire in their respective districts. But the mere fact

that the Legislature omitted to notice the Act of 1857 does

not curtail the powers conferred by the Legislature on the

Judges by the Act of 1876, nor does it deprive the Rules

framed under that Act of binding force. If the Magistrates

were still vested with the powers mentioned in the Act of

1857, they could virtually supersede those Rules of Court.

The special reasons for the double horse-hire in this district,

may, however, be well borne in mind when new Rules are

framed. The apphcation must be granted, with costs

against the Messenger.

Denyssek, J., concurred.

Ordered accordingly, with costs against the respondent

Loeffler.

fApplicant'a Attorney, Van Zti. I

LKespondents' Attorneys, Faihbkidob, Aedkrkb & Scanlen.J

129

OOSTHUYSEN VS. MuLLEE.

Co-proprietors.—Appropriation of soil.

A co-ovmer of landed property is not entitled, without the

consent of his co-owners, to appropriate part of the soil

for the purpose of making bricks, whether such bricks are

to he used on the place or not.

Applicant obtained from a Judge on Circuit a rule nisi, ^^^^^restraining respondent from entering applicant's enclosure .

—

on the farm Matjesdrift, and cutting and breaking the Muiier.

ground within the enclosure or interfering therewith, pend-

ing an action for damages and for the sub-division of the

farm. The rule was returnable in the Supreme Court

this day.

Voluminous affidavits were filed. The farm in question

was held by appUcant, respondent, and another, in undi-

vided shares. There had been negotiations for its subdivision,

but without result. Apphcant alleged that he had madedams and had enclosed a portion of the farm, and that

respondent had entered this enclosure and proceeded to

make a kiln of bricks from the soil, using water from the

dams. This respondent denied, and alleged there was no

enclosure beyond an old row of aloes growing.

Stockenstrom, A.-G. (with him Hoskyns), moved to have the

rule made absolute.

Upington, for the respondent, opposed. Respondent had

a title in the soil quite as good as that of apphcant. It was

customary to make bricks on farms for the purpose of

building. It was not causing any appreciable change in the

nature of the soil. This was not a case for an injunction

{Drewry on Injunctions, pt. 2, ch. 1, sec. 38, p. 162).

Db Villibks, C.J. : This rule must be made absolute.

There is no doubt that where a co-owner appropriates part

of the soil to his own use for the purpose of making bricks,

whether to be used on the place or not, the consent of his

co-proprietors must be obtained. In the absence of such

consent the person breaking the soH may be interdicted

(Voet, 10, 3, 7). The person complaining is quite justified

Vol. VII.—Part II.^

lao

,1877. in immediately taking steps to prevent the misappropriation

of the soil. The applicant is entitled to his costs.Oosthuysen i-

MuUer.


Rule made absolute accordingly, with costs.

fApplicant's Attorneys, Faiebeidge, Aedekne & SCANi.Es."]

LRespondent's Attorney, C. C. rE Villiers. J

Paterson vs. S. Solomon & Co. and McLoughlin.

Costs.—New Trial.

Where a jury returned a verdict in favour of defendants, and

a new trial was ordered and nothing said at the time

about costs, and on the second trial the jury found for

plaintiff, the Court granted judgment for plaintiff for the

damages awarded, with costs of the second trial, leaving

each party to pay their own costs of the first trial.

1877. The plaintiff sued defendants, the editor, proprietors, and" !^ pubhshers of the Argus newspaper, for damages for libel.

s. soiomon''and The jury fouud for the defendants. The plaintiff applied

McLoughiiii. for and obtained an order for a new trial (vide ante, p. 62),

but at the time no order was made as to the costs of the

first action. At the second trial the jury found for the

plaintiff for £100 damages.

Ujnngton (with him Maasdorp), for the plaintiff, nowmoved, in terms of the 39th section of Act No. 7, 1854,

for judgment upon the entire case, with costs of both

actions.

Stockenstrom, A.-G. (with him Buchanan), for defendants

S. Solomon & Co., and Jones, for defendant McLoughlin,

opposed in so far as the costs of the first trial were concerned.

The second trial was not in the same position as an appeal

from the first verdict. If anything, the defendants, and not

the plaintiff, as the successful parties in the first action, were

entitled to the costs of that trial. In England the practice

131

seemed to be that if the same party succeeds on a new trial, is??.

he had the costs of both trials ; but if his opponent, then he "—had only the costs of the new trial (Hoivarth vs. Samuel, s. soiomon '&

1 B. & A., 566 ; Sherlock vs. Earned, 8 Bing., 21). McLoughim.

Upington, for the plaintiff, pointed out that in Englandthe finding of the jury was decisive as to costs, and no dis-

cretion was left to the Judges except in cases of tort whereno more than 40s. were recovered. By English statute,

17 & 18 Vict., c. 125, s. 44, when a new trial was granted

on the ground that the verdict was against the weight of

evidence, as was the case here, the costs of the first trial

were made to abide the event, except there were special cir-

cumstances which would induce the Court to order other-

wise. The plaintiff had been cruelly UbeUed, and hadrecovered substantial damages. In such cases the English

Courts always looked favourably on an application for costs.

The order for the new trial was necessarily silent on the

question of costs, because no judgment had been given bythe Court on the first verdict, and therefore no application

for costs could be made till now.

De Villiebs, C.J. : The fact that in England the verdict

of the jury disposes of the question of costs, and that in this

Colony the Court only has to deal with them, ought not to

induce the Court to depart from the weU-estabhshed Enghsh

rule. That rule was, that where there was nothing said on

granting a new trial about the costs of the first trial, then

neither party shall have his costs of that trial, in case the

decision of the first jury is reversed by the verdict of the

second jury. In the present case there are circumstances

which would induce the Court not to give the plaintiff all

his costs. Immediately after the first trial the defendants

pubUshed a fuU apology for any attack on the plaintiff.

Moreover, my brother Denyssen and myself, who each pre-

sided over a trial, are of opinion that the damages awarded

by the second jury are heavier than we would have given

had the case been tried before us without a jury. Had the

first jury found only nominal damages, the probabihty is,

that each party would have had to pay his 6wn costs. I

think the order that will do justice to all parties will be, to

give judgment for plaintiff for the £100 damages awarded

by the jury, the defendants to pay the costs of the newK 2

132

1877. trial, and each party to pay his own costs of the firstNov. 26.

' f J r J

^— trial.Fatei3on vs.

S. Solomon &

McLoughiin. Denyssen, J., Concurred.

Judgment accordingly, for plaintiff for £100 damages,

and costs of second trial ; each party to pay his own costs

of the first trial.

[Plaintiff's Attorneys, Eeid & Nephew. -i

Defendants' Attorneys, Faikbkidge & Akdeene. I

„ „ Eedelinghdys & Wesseis.J

Ross vs. Deamat.

Magistrate.—Provisional Judgment.

A summons was served at defendant's residence during his

absence. On the instrtictions of defendants wife an agent

appeared for defendant and applied for a postponement of

the hearing, which however the Magistrate refused, andgave judgment for plaintiff with costs. Held,

—

that such

judgment was in effect a provisional one, and liable to be

re-opened.

1877. The plaintiff sued the defendant in the Court of Resident—^ Magistrate for Cape Town on an account for work and

Dramat'. labouT done. The summons was served at defendant's

residence during his absence from home, and his wife em-

ployed an agent of the Court to apply for a postponement

of the hearing in consequence. The Magistrate refused to

postpone the case, and entered " judgment " for plaintiff

with costs. Defendant on his return home appealed, as he

stated he had a good defence to the claim.

Buchanan, for the defendant, contended that the judg-

ment should at most have been a provisional one, so as to

"give defendant an opportunity of re-opening the case. Inconsequence of the appearance of an agent for the defendant,

the Magistrate had treated the judgment as final, and hadentered it accordingly.

Ujnngton, for the plaintiff, was not heard.

133

De Villiers, C.J. : The Magistrate was not bound to i877.

enter the judgment as " provisional." It is in fact, however,^°—'

a provisional judgment, although not so stated, and the Drimlt.

defendant is premature in applying to this Court until theMagistrate has been asked and has refused to re-open thecase. The present appeal must be dismissed.



CAppellant's Attorney, Buobanam.~|Respondent's Attorney, Diokson.J

Nel vs. Lotjw.

Executor.—Purchase of Trust Property.

Where executors or administrators purchase the property of

the estate under their administration, the Court will makesearching inquiry into the circumstances, and it must he

shewn that the purchase was bon£b fide. Where anexecutor shewed that the property had been submitted to

public competition and had been purchased by him at

auction, the Court would usually throw on the other side

the onus of shewing that the purchase ivas not a bon^fide one.

The plaintiff Nel was married in community of property

to Maria Steenkamp, whose parents had, by mutual will, nov^'t.

prelegated certain of their property at a price far below its Nei »» loi".

real value. The defendant was the executor under the

mutual will. The plaintiff sued for the payment of his wife's

legitimate portion, calculated upon the true value of the

estate. The defendant in his plea tendered to have the

estate valued, and to pay the legitimate on the basis of the

value of the estate at the time of the testator's death. Theparties ultimately agreed upon the value of the estate, and

it is unnecessary further to mention this portion of plaintiff's

claim.

The plaintiff further alleged that the defendant had sold

Xov. 27.

Xel vs. Lomv

134

1877. the movable property of the estate at a price far below its

real value, by reason of the defendant's improper conduct in

directing and conducting the sale, and by his having himself

bought in the property. To these allegations defendant

pleaded the general issue.

The plaintiff sought to establish by evidence, that certain

ostriches which had been bought by defendant for £400 hadbeen sold far below their real value ; and also that certain

oxen, said to be affected with lung sickness, had not been

produced at the sale, but had been sold unseen. The de-

fendant shewed that the sale had been well advertised, andhad lasted six days, and had been attended by about 400

people. The oxen were sold after consultation with the

auctioneer as to the best way of disposing of them, and the

ostriches had first been put up in three lots and sold to

different persons, and when afterwards put up in one lot

had been bought by the defendant at an advance.

Stockenstrom, A.-G. (with him Cole), appeared for the

plaintiff ; and Upington (with him Buchanan) for the

defendant.

De Villiees, C.J., after giving judgment for the plaintiff

for his wife's legitimate portion, continued : It is probable

that the plaintiff would, after the offer made in the plea,

have withdrawn this action but for the belief that there hadbeen something fraudulent in the sale of the movables

belonging to the estate. The plaintiff evidently considered

that the mala fides consisted in the purchase by the defendant

of the ostriches without their having been properly sub-

mitted to public competition ; in some lung-sick oxen having

been sold unseen ; and in the way some sheep were disposed

of. The objections with regard to the oxen and the sheep

have certainly fallen to the ground. Evidence has beengiven that the oxen were said to have been suffering fromlung sickness, and that the defendant acted with a viewbest to forward the interest of the estate. Nothing has beenbrought forward to shew that the oxen were not so suffer-

ing ; and the plaintiff has not been able to shew that the

statement with regard to the lung sickness was a mereblind. There remains, however, the matter of the ostriches.

No doubt in cases of this kind, where executors purchase

Nel vs. Lout

135

the assets of the estate under their administration, the Court i*'^„-.

Nov. 27.

will feel it incumbent upon it to make searching inquiries

into the circumstances. Where a person in a fiduciary

position purchases any property of an estate of which he is

the administrator, it must be shewn that the sale was a

bond fide one. Where, as in this case; the executor shewed

that the property had been fairly submitted to competition,

and the purchase was made at public auction, the Court

should throw on the person questioning the sale the onus of

shewing that it was not bond fide. Now it appeared in the

course of the evidence that the ostriches were sold at first

in three lots, but that they did not fetch as much as whenthey were afterwards put up and sold in one lot. I do not

think there is anything to shew that, if the ostriches had

been sold singly, the result would have been different. It

would therefore, under such circumstances, be monstrous to

hold the defendant hable for any inadequacy of price

realized at the sale. With regard to costs, there was sub-

stantially a tender made in his plea by the defendant to

pay over the legitimate portion upon a certain basis. As

the plaintiff did not accept that offer, he should be made to

pay the costs which were incurred after it, but the defendant

must pay all costs which were incurred previously. The

plaintiff will be declared entitled to receive his wife's

legitimate portion.


Judgment accordingly for plaintiff for the amount of his

wife's legitimate portion, with costs to date of tender

;

plaintiff to pay all costs incurred after tender.

rPlaintiff's Attorneys, FAUiBKiDGE, Akdekxe & Scaxlf.>-.'1

LDefendant'8 Attorney, Van Zyi. J

136

Lee vs. Schonnbebg.

Medical Practitioner.—Liability for Maipraxis.

A Medical Practitioner, like any other professional man, must

bring to bear upon any case which he had to attend a

reasonable amount'of skill and care, and where he does

not exercise su^h skill and care he would he liable in

damages.

ig77. The plaintiff was a trader, and the defendant a medicalNov^T.

j^^jj practising at Malmesbury. The plaintiff met with an

Si-h^berg. accident and sustained an injury to one of his legs, andcalled in defendant to attend to him. Plaintiff alleged that

defendant discharged his professional duties in a careless, un-

skilful, negligent, and improper manner, whereby the plaintiff

was greatly injured and suffered pain, and was prevented

from attending to his business, and was obliged to expendlarge sums of money in endeavouring to get cured ; where-

fore he claimed £500 damages. Defendant pleaded the

general issue.

Plaintiff proved the injury, and called medical evidence

to shew that he had been improperly treated, whereby he

had suffered greatly. Medical evidence was called by the

defendant in support of his course of treatment.

Upington (with him Jones), for the plaintiff, cited Lan-phier vs. Phipos, 8 C. & P., 475.

Stockenstrom, A.-G. (with him Tennant), for the defendant.

De Villiers, C.J. : There can be no doubt that a

medical practitioner, like any other professional man, is

called upon to bring to bear a reasonable- amount of sldll

and care in any case to which he has to attend ; and that

where it is shewn that he has not exercised such skill andcare, he wiU be liable in damages. But the onus is on the

plaintiff to shew want of skiU and care. The evidence in

this case (which his Lordship referred to) does not estabhsh

the plaintiff's contention.

Denyssen, J., and Fitzpatkick, J., concurred.

Judgment accordingly for the defendant, with costs.

rPlaintiff'B Attorney, Van Zyl. "1

LDefendanfs Attorney, 0. C. I)E Villiers.J

137

Stephan Beds. vs. Loubscheb.

Contract in restraint of trade.

A contract in restraint of trade must he construed strictly.

Defendant and two others, joint owners of the farm Soldaten

Post, leased portion thereof to plaintiffs, and contracted

that they would not allow any business to be carried on" on any immoveable property belonging to us." Thedefendant was also part owner with third persons wlio

were no parties to the contract of another property called

Pairysberg, on which property plaintiffs complained that

trading had been allowed. Held,

—

that Patrysberg wasnot one of the properties included in the contract.

The plaintiffs, Messrs. Stephan Bros., leased from the 1377.

defendant and Loubscher junior, and one Ehlers, joint'^^^*-

owners of the farm Soldaten Post, a portion of the farm for M^Loubs^het.

the purpose of opening a store there, and of carrying on a

fishery business. By the contract the lessors bound them-selves during the subsistence of the lease, " not to allow or

tolerate any business of whatever nature on any portion of

any immoveable property or properties belonging to us upto this date." The defendant was at the time joint owner,

with a number of other persons who had not been parties to

the contract, of the adjoining farm Patrysberg. Plaintiffs

complained that traders had been allowed to go uponPatrysberg and sell goods, and to use one of the houses onthe farm for that purpose, wherefore they claimed damagesand a perpetual interdict restraining future breaches of

the agreement of lease. Defendant pleaded the general

issue.

Upington (with him Buchanan), for the plaintiffs, led

evidence in support of the claim, and contended that the

words of the contract were wide enough to include the farm

Patrysberg. The intention of the parties clearly was that

there should be no trading on property belonging to the

lessors or any one of them.

Stockenstrom, A.-G. (with him Jones), for the defendants,

contended that there had been no breach of contract. The

138

1877. defendant was not sole owner of Patrysberg, and could notNov. 28. .11- ^ o— control his co-owners.

Loutacher'. Upington, in reply, urged that any one of the proprietors

could prevent trading on the farm against his wiU. De-

fendant had not attempted to stop it.

De Villiees, C.J. : No doubt this is a contract not in

general but in partial restraint of trade, but still it should

be construed strictly. The three lessors bound themselves

not to allow trading on any property belonging to them.

Now Patrysberg did not belong to them at all. Only one of

the lessors had any interest in that farm, and that only to a

limited extent. If there was any ambiguity in such a

contract as this, the Court should favour a construction in

favour of the freedom of trade. This view is sufficient to

dispose of the whole case, though even on the merits I amnot sure that plaintiffs are entitled to succeed.


Judgment accordingly for defendant, with costs.

rpiaintifl's Attorney, C. 0. DE ViLiiEES.lLDefendant's Attoraey, DE Korte. J

Nov. 29.

Behrens vs. Berg.

Pauper.—Rule of Court No. 125.

The Rule of Court enabling paupers to bring actions pro Deo,

is not intended to apply to a person who, though not

actually in possession of £10, yet has means of obtaining

the money.

1877^ Plaintiff obtained a rule nisi calling upon defendant to

shew cause why he should not be allowed to sue in formdSehrens vs.

Berg. pauperis

Upington, for the defendant, shewed cause, and producedaffidavits stating the plaintiff had, by virtue of his wife, a

vested interest in certain property which would fall into

possession after the death of the wife's mother.

139

Buchanan, for the plaintiff, prayed that the rule be made J^^^^g

ibsolute. Rule of Court No. 125, entitled the plaintiff to „ ,

'

1 ,.Behrenstis.

lue as a pauper provided he was not possessed of property Berg,

io the value of £10." This property was not in possession,

3ut only in remainder.

Upington, for the defendant, contended that plaintiff was' possessed " of the reversionary interest, which could be

sold.

De Villiers, C.J. : The Rules of Court were framed to

meet the cases of persons bond fide unable to pay the fees

3onnected with bringing or defending an action. Theycertainly were not meant to apply to the case of a person

who might not perhaps be in actual possession of cash, but

who yet had ample means of obtaining it. . It is admitted

that plaintiff has a vested interest by right of his wife in

certain property, and it is not denied that if he chose to

dispose of that vested interest it would realise more than

£10. It is true the Rule is rather loosely worded, but I

think the meaning of the word " possessed " is, that the

applicant should not " own " sufficient property.


Rule discharged accordingly, no order as to costs.

[Defendant's Attorneys, Faikbkidge, Akdeene & Scaxlen.]

Botes vs. Mbere.

Executor Dative.—Power of Circuit Court to remove.

Semble,

—

That a Circuit Court has jurisdiction to remove an

Executor Dative from office.

The plaintiff, Mrs. Botes, brought an action in the ^m?.^

Supreme Court, against the defendant Meere and his co- °-I—', . ,. ., • 1 / ii. Botes f». Meere.

executor, one of the objects of the suit being to remove the

defendant from his office of executor dative of the estate of

plaintiff's late husband.

Botes ve. Meeie.

140

1877. Jones (with him Leonard), for the defendants, applied

under Rule of Court No. 34 to remove the trial to the next

Circuit Court for Frazerberg, as most of the witnesses

resided in that district, and one in the Free State.

Upington, for the plaintiff, opposed. The plaintiff had the

right of choosing her forum, and the case had been set downfor trial this term. If postponed for circuit, four or five

months at least must elapse. Moreover it was doubtful if a

Circuit Court had power to remove an executor dative from

office for misconduct.

De Villiers, C.J. : The only argument in the plaintiff's

favour is the time which must elapse before the next Circuit

Court can sit. I have no doubt at all on any other point.

The bringing of witnesses to Cape Town is a great expense,

but it may be five or even six months before the case could

be tried at Frazerberg, and moreover it is not certain that

there wUl be a circuit at Frazerberg. If at the trial anynecessity should arise for a postponement, an application

can then be made. The application must, however, nowbe refused.


Application refused accordingly, costs to be costs in

le cause.

rpiaintift's Attorney, C. C. DE Villiers."!LDefendant's Attorney, Dickson. J

Db Jager vs. De Jager.

Pleading.—Exceptions.—Inconsistent Pleas.

The plaintiff bought and obtained transfer from the defendant

of certain property. Defendant refusing to give posses-

sion, plaintiff brought an action of ejectment and for

damages. The defendant pleaded first the general issue.

Secondly, that the purchase and transfer had been effected

through plaintiff's fraud. And thirdly, that the circum-

141

stances under which the sale was made amounted in law

to Isesio enormis. Exception to these pleas for inconsis-

tency, and to the third plea for not setting forth a sufficient

answer, sustained.

The plaintiff's declaration set forth, that on the 23rd 1877.Nov 29.

November, 1875, he purchased from the defendant his half -^—Tip Ts^ffGi* ts

share of the farm BufEelsdrift, and that on the 12th June, Dejager.

1877, transfer thereof from defendant to plaintiff was duly

passed and registered. That since the date of the said

purchase the defendant without lawful right had retained

possession and occupation of the said property, and hadrefused to deliver up peaceable possession thereof, and hadat divers times diverted certain streams of water flowing

over the said property, to the injury of the plaintiff, whotherefore prayed ejectment and damages.

The defendant pleaded first the general issue, den3dng all

the allegations of fact and conclusions of law in the declara-

tion contained. Secondly, that defendant admitted, for the

purposes of the plea, the purchase and transfer of the

property as in the declaration set forth, but said that he wasinduced to make the same by the fraud of the plaintiff.

Thirdly, that the said sale was made under such circum-

stances as amounted in law to Icesio enormis, in that the true

value of the property sold greatly exceeded the purchase

price agreed to be paid. In reconvention the defendant set

up the special pleas as grounds for the cancellation of the

contract and of the transfer.

Plaintiff's replication joined issue on the general plea ; andthen excepted to the second and third pleas on the grounds

that they were inconsistent with the first plea, and that they

were vague, informal and insufficient. Exception was also

taken to the claims in reconvention.

Buchanan (with him Leonard), in support of the excep-

tions, submitted that the defendant could not both deny the

allegations of the declaration and also confess and avoid

them. As to the first special plea there was no statement

to shew in what the alleged fraud consisted. As to the third

plea and to the claim in reconvention founded thereon, the

defendant had not stated the true value of the property

purchased, nor had he given the plaintiff the option of

142

1877. cancelling the sale or of paying the full value of the pro-

^^ perty in the event of the defendant establishing his right to

De Jager. relief upon the ground set forth therein (Voet, 18, 5, 3).

Upington (with him Jones) contended that the defendant

had the right of insisting that plaintiff should first prove

his declaration. As to the special pleas, it was sufi&cient to

allege fraud and Icesio enormis, leaving the facts to be

disclosed at the trial {Chitty's Precedents, 3rd ed., p. 405 ;

Saunders on Pleading, vol. 2, p. 61).

The CouBT held that the general issue and the special

pleas were inconsistent. The special plea of fraud wassufficient, but the last plea was too bald.

Exceptions allowed accordingly, with costs ; but leave

given defendant to amend the first and third pleas.

rPlaiutiS's Attorney, Van Zyl. 1LDefendant's AttomeyB, Tredgold & HULL.J

Dreybr vs. Cloete.

Water-rights.—Pollution of stream.

Damages and an interdict granted against defendants, brewers,

upper riparian proprietors, who had for many years

allowed the polluted water from their brewery to flow into

the stream, but who latterly, in consequence of a large

increase in their business, had increased the amount of

pollution flowing into the stream, to the injury of the

plaintiff, a brewer, situated on the stream below

defendants.

1877. The plaintiff carried on business as a brewer at New-„ 12! lands, and the defendants were the executors of the estate

Drears, of the late D. Cloete, who also had a brewer's business

at Newlands, situated on a stream above plaintiff's pro-

perty.

The declaration alleged that the plaintiff was entitled to

have the water of a certain stream or watercourse flow

143

through and past his brewery and lands in a pure and j}^^];,

unpolluted state, and of good and proper quality for use in •j_2^-

his business. That the defendants on many occasions on Dreyerrs.

and after the 24th May, 1877, wrongfully, unlawfully, andneghgently discharged and carried and suffered to flow into

the said stream, and to mix with the water thereof, large

quantities of impure, foul, and polluted water, and of water

mixed with injurious substances, and large quantities of

impure and dirty refuse and washings from defendant's

brewery, by reason whereof the said stream became and wasstill, where it flowed past plaintiff's property, impure andfoul and not of proper quality, whereby the plaintiff wasprevented from carrying on his business, and was damagedby reason of the spoiling of his beer, and by the loss of

custom. Whereupon he prayed damages, and a perpetual

interdict.

Defendants pleaded the gener£d use.

During the hearing, it transpired that one Ireland, a

miller, was entitled, after the water left defendant's brewery,

to the flow of the stream for the purposes of his mill. Atthe suggestion of the Court, Ireland intervened as co-

defendant, but no further pleadings were filed. Theplaintiff had, in 1866, established his right, as against

Ireland, to the uninterrupted flow of the water of the

stream (vide Dreyer vs. Ireland, 4 Buch. S. C. Rep., (1874),

p. 193). It was now contended that the defendants were

not able to allow the unpolluted water not used by them in

their brewery to flow down by itself to plaintiff's property,

as by so doing they would render themselves hable to anaction at the suit of Ireland, who could compel them to

turn all the water, corrupted as well as surplus water, into

the watercourse that ran to his mill. The watercourse wasan artiflcial one, and not the original bed of the stream, the

former riparian owner of the whole property having diverted

its course many years before the estate, of which the plain-

tiff's and defendants' present shares were parts, had beensubdivided. When the estate had been cut up there hadbeen a division of rights to the water, so as to meet the

needs of the several owners of the subdivided portions. Tothese rights the parties to this suit had succeeded. Fromthe evidence it appeared that the business at defendants'

brewery had very largely increased during the past few

144

1877- years, and that in consequence more polluted water had

f°i2.' been sent down to plaintiff than had formerly been the

preyer vs case. About three years ago plaintiff had complained to

the late Mr. Cloete, who had thereupon altered the course

of the polluted water, and had used it in his garden andorchards. Since Mr. Cloete's death, a dispute had arisen

between his executors, the defendants, and the plaintiff,

some of the defendants disputing plaintiff's title to the

water. The records in the case of Dreyer vs. Ireland were

put in as evidence at the trial.

Upington (with him Leonard), for the plaintiff, contended

that plaintiff's right to the water had been established. It

followed that the plaintiff was entitled to receive the water

pure and uncontaminated. The pollution of streams waslooked upon by the law with extreme disfavour. {Roscoe,

N. P., 12th ed., 705). Diversion of a stream might be law-

ful, though pollution would not be. A right to water mightbe acquired by impUed grant or by necessity, but no such

thing as an imphed right to pollute streams could be foundin the books. Defendants had no express title to poUute in

this case, and if there was no imphed grant, the only waythey could have acquired a right was by prescription,

and that ground had been cut from under them by the

evidence.

Stockenstrom, A.-G. (with him Cole), for the defendants,

submitted that it had been proved to have been the practice

for at least the period of prescription, to let the refuse

water run from defendants' brewery into the stream. Adistinction was to be drawn between the rights of riparian

proprietors of a stream and the rights of persons to use the

water in an artificial watercourse running through their

several properties. Cloete's brewery had been in existencefor the last sixty years, long before the construction of thewatercourse which now led to Ireland's mUl. It might bea hardship on plaintiff to have to take the water after it

had been used in defendant's brewery, but he had placedhimself below that brewery, and rendered himself hable tosuffer in consequence. In the case of Dreyer vs. Ireland,Ireland had been bound more by the weakness of his owntitle than by the strength of Dreyer's title. There has notbeen anv unreasonable pollution Droved, nnltr Himli a a Tiro a

145

necessary for the carrying on of the defendants' brewery. is"-

The defendants had a servitude upon the stream for the .. i z-

requirements of their brewery. Dreyer»s.

Cole, on the same side, contended that plaintiff hadoriginally acquired the right of a mere usuarius, not that of

a usufructuary. It was a personal right, which he had lost

on his insolvency. The right did not re-vest in him on his

acquiring the property he now held. As defendants had

the right to use the stream for their particular business,

they had the right to corrupt the water so far as was

necessary for such business (Bealey vs. Shaw, 6 East,

p. 214).

Upington, in reply, contended that defendants were not, in

this suit, entitled to dispute plaintiff's title.

De Villiers, C.J. : This case is one of considerable

importance, and if I had any doubt about it I should have

postponed giving judgment, in order to consider more

carefully the arguments of Counsel. But to my mind the

case does not admit of a moment's doubt. The right of

the plaintiff to an interdict is perfectly clear. The defen-

dants' Counsel said one of the reasons why it was impossible

to allow the unused water to flow down the original water-

course was, that by so doing the defendants might be

compelled by Ireland to discharge aU the water corrupted

as well as surplus into the stream that turned his mill. In

order that no injustice might be done to Ireland, the Court

expressed a desire that he should intervene ; and he did so,

his case being in point of fact identical with that of the

other defendants. The first contention to be considered

which has been raised by Counsel is, that plaintiff has not

made out his right and title to the use of the stream. I

think, however, that the defendants are foreclosed fromtaking this objection in the face of the decision of the

Court in 1866, in a case in which both Dreyer and Ireland

were parties. In that case the Court came to the conclusion

that Dreyer had such a right to the water as to be entitled

to an interdict restraining Ireland from obstructing the flow

of the water. The main ground for that conclusion was that

the right to the stream of water for the use of the mill hadbeen granted at the same time when the water was granted

to the original purchaser of "Dreyer's property. Exactly

Vol. VII.—Part II.'

L

146

1877.Dec. 11.

» 12.

Dreyer vs.

Cloete.

the same reason which induced the Court in 1866 to hold

that Dreyer possessed certain rights would now operate in

his favour. Without expressing any opinion as to the view

I would have taken in that case had it now for the first

time come before us for decision, I feel bound by the

judgment. The learned Chief Justice in his judgment

said :" The mere effect of possession of easement or interest

in the property of another, as affording presumptive evi-

dence of right, is very powerful ; and in respect of personal

property the ordinary proof of title is the possession of it

;

and it has been held that the mere naked possession of

land is prima .facie evidence of right against a merestranger who can show no colour of title." From this view

Mr. Justice Watebmeyer, who was in the minority, does

not appear to have materially differed, because towards the

conclusion of his judgment he says :" Nor do I dispute that

mere possession is a good title against any one who cannot

shew a better ... If I accept the doctrine of my Brethren

that there is sufficient in Dreyer to give him a right to this

action, then, as regards the facts and the use of the right, I

perfectly agree with the views expressed by them." So that

Mr. Justice Watermeyee did not dissent from the view of

the Court that possession is sufficient prima facie evidence of

title, but he did not agree that there was sufficient evidence

of possession. As against Cloete's executors, who were theoriginal defendants in this case, I am of opinion that theplaintiff's title has been sufficiently proved, and that he is

entitled to the relief prayed for. The interdict which weshould grant, need not, however, be a perpetual one, but anordinary interdict will suffice, so that should Ireland here-

after institute an action, and estabhsh Dreyer's want of title,

or a defective title, then, on apphcation by the defendants,the interdict may be dissolved. I wUl now turn to thequestion of the pollution of the stream. The law as tothe diversion of water* for domestic and agricultural pur-poses is well settled by a series of decisions. As to thepollution of water, everything depends upon the nature andextent of the pollution. Some matters are so noxious thatthe least quantity thrown into a stream would be sufficientto pollute it, whilst others, such as the dregs of beer casks,would only be injurious if mixed with the water inunreasonable quantities. " Sic utere iuo ut alie.nn ne Imdns "

147

is the maxim applicable to every case of this nature. i877.

The mere fact that Cloete had been allowed to send down ., 12-

polluted water does not give him the right to pollute the Dreyerus.

water to such an extent as to injure the plaintiff. A person

in the position of the upper proprietor having a small

brewery, would send down so little offensive matter that

in a large stream, like the one in question, it would be

imperceptible. The fact that he had done so for fifty

years and upwards would not give him the right to increase

the pollution to the detriment of the lower proprietors.

Now the business of Cloete' s brewery has increased to a

very great extent during the last nine or ten years, one of

the witnesses stating that it had more than trebled. Anincrease of this kind would represent a very large increase

in the fouling of the water. It appears that some two or

three years ago the plaintiff remonstrated with the late Mr.

Cloete, who admitted his right and immediately directed

the polluted water to some lands ; but after Mr. Cloete's

death this dispute has again arisen, and at least some of the

executors claimed the right to do what the plaintiff com-

plains of ; others of the executors, however, did not agree

with them. This action, however, is not based on anyagreement, but is based entirely on the right of possession

vested in plaintiff, and on his right to use the water and to

prevent the upper proprietors from polluting the stream

to his damage. I think the evidence suflS.ciently proves

that the pollution has latterly been so great as to damagethe plaintiff, and that his case for an interdict has beenclearly made out. There will be judgment for £25 damages,and for an interdict as against Cloete's executors, who mustalso pay the costs ; and Ho order as against the intervening

defendant Ireland.

Dbnyssen, J. : I am of the same opinion. A great dealof whoUy irrelevant matter has been introduced into this

case, but the real issue is, has there been a pollution of thestream to such an extent as to make the water which flows

down to the plaintiff's brewery unfit for the purposes of his

business ? There is evidence sufficient and abundant to provethat plaintiff has been unable to make use of the watersent down to him by defendants, and that he has suffered

damage in consequence. I agree with the Chief Justice

148

1877.Dec. 11.

„ 12.

Dreyer vs.

llCloete.

that there has been an unreasonable amount of pollution

caused by defendants.

Judgment accordingly for plaintiff against the defendants

Cloete's Executors, for £25 damages, and an interdict,

with costs.

["Plaintiff's Attorney, J. I. de Villiers. 1

Lriefendant's Attorneys, Eedelinghtjts * Wessels.J

Irvine & Co. vs. " Elise."

Ad fundandum jurisdictionem.—Bottomry.

The attachment of a vessel in port granted to found jurisdic-

tion, in an action against the captain and owners upon a

bottomry bond.

1877. Upington, moved ex parte for an order to attach the ship— ' Elise, at present in the roadstead of East London, for the

Elise."' ' purpose of founding jurisdiction in an action to be brought

by edictal citation upon a bottomry bond against the captain

and owners.

De Villiees, C.J. : Why not sue the master of the

vessel ? This is a cumbrous proceeding.

Upington, for the applicants, stated that the captain haddrawn upon the owners, but could not get the money.

The Court granted a rule nisi, to be served upon the

captain, to shew cause why the vessel should not be attached

ad fundandum jurisdictionem.

February 1st, 1878,—

Upon proof of due service of order, and no appearancebeing made,

—

The CoTTRT made the rule absolute pending the result of

an action to be brought on the bottomry bond in the Vice-Admiralty Court.

[Applicants' Attorneys, Reid & Nephew.]

149

Queen vs. Chabatjd.

Gunpowder Ordinance No. 2, 1853, sect. 13.

—

Certificate,

of J.P.

An order signed by a Justice of the Peace that a dealer in

arms, &c., is authorized to sell a pistol to the person named

therein, is not such a certificate as is required by the

13th section of the Gunpowder and Firearms Ordinance,

No. 2, 1853, in that it does not certify that the person

named is, to the knowledge of the Justice of the Peace, a

fit and proper person to obtain such permission.

The accused, L. A. Chabaud and F. M. Legg, weredIc^ij.

indicted in the Eastern Districts Court and convicted of the q„^^,crime of contravening the 13th section of Ordinance No. 2, chataud.

1853, regulating the dealing in Gunpowder, Firearms, and

Lead.

The indictment contained two counts, the first alleging

the contravention of the Ordinance on the 26th October,

by the delivery, without the production of the certificate

required by the 13th section, of a pistol to one Walton, a

farmer ; and the second, the delivery without a certificate of

a gun on the 1 1th November to one Zwaartboy. It appeared

that a firm of Hcensed dealers carried on business at Sand-

flats under the style of J. Edwards & Co. Legg and one

J. Edwards took an active part in the business, and Chabaud,

who was a Justice of the Peace for the district, was also

a partner. Chabaud, in his character of J.P., gave the

following order :

—

" Permission is hereby granted to Messrs. J. Edwards & Co. to sell to

Mr. W. Walton one revolver, which he requires for his own use."

Upon this order Legg in person sold and delivered a

revolver to Walton, Chabaud being present at the transac-

tion. This was the deUvery laid in the first count of the

indictment. Subsequently, Chabaud, as a J.P., gave to

Zwaartboy a certificate in the terms of Schedule No. 4, to

Ordinance No. 2, 1853, as foUows :

—

" I, Louis A. Chabaud, do hereby certify that the bearer, Piet Zwaart-

boy, of Bushman's Run, is to my knowledge a fit and proper person to

obtain and have one gun, one pound powder, 250 caps and 4| lbs. lead,

which he requires for his own use."

150

1877. Upon this certificate Zwaartboy bought a gun at Edwards"—' & Co.'s store. The second count of the indictment was based

chabaud: upon the defivery of this gun. It was not shewn that either

Chabaud or Legg were present at this sale, but presumably

the sale had been made by a clerk. Upon the circumstances

becoming known to Government, Chabaud's commission as

J.P. was cancelled.

The accused were tried before Mr. Justice Smith and a

jury, and both before and after verdict Counsel moved in

arrest of judgment. The presiding Judge overruled the

applications, but reserved the matters brought forward for

the opinion of the Supreme Court. Sentence was passed,

but execution was stayed.

Cole, for the accused, moved to have the conviction

quashed, on the ground as regards Chabaud, that the offence

being that of delivering a weapon there was no evidence to

go to the jury of any delivery by Chabaud. And as to both

prisoners, that they were protected by the proviso to the

13th section of the Ordinance No. 2, 1853, viz., " that no

certificate granted in contravention of this provision (viz.,

that no Justice of the Peace residing within twelve miles of

the Magistrate's office shall grant any certificate) shall be

deemed to be invalid, so as to subject any person acting

upon it to any pains or penalties."

Upington, for the Crown, contended that both the permit

and the certificate were valueless, as Chabaud was himself

a dealer and that this was known to Legg {vide sect. 8,

Ordinance No. 2, 1853). As to the permit, it was not in

form, the essential part of the certificate required by lawbeing that the person authorized to purchase was a fit andproper person to the knowledge of the Magistrate or J.P.

Cole, in reply, submitted that the indictment did notallege that the permit or certificate given were bad. The8th section of the Ordinance did not apply here.

Db Villiers, C.J. : It is not in our power to quash theconviction ; all we can do is to express our opinion on thematters reserved by the Court below.* The 13th section of

* Since this decision Act No. 5, 1879, provides a procedure for appealin criminal cases.

—

Ed.

151

the Gunpowder Ordinance, which the accused were charged j^g''\'g

with contravening, imposes a penalty for the dehvery of any

guns, gunpowder, lead, &c., "provided that nothing in this chabaud

section contained shall be deemed or taken to prevent any

sale. Sec, to any person who shall produce and deposit with

the person delivering the gun or other matter or thing

mentioned in such certificate, a written certificate signed by

either a Resident Magistrate or Justice of the Peace, certi-

fying that the bearer, who must be named in such certificate,

is to the knowledge of the person signing the certificate a

fit and proper person to obtain such gun, &c., which certifi-

cate shall in substance correspond with the form markedNo. 4 in the Schedule to this Ordinance annexed." As to

the first count, there can be no doubt that a delivery of a

pistol to Walton has been proved to have taken place at the

shop of Edwards & Co., of which firm both Chabaud andLegg were partners. The sale was made by Legg himself,

and apparently in the presence of Chabaud. Chabaud bybeing present at the transaction may well be taken to haveauthorized it. But he went further, and gave a written

permit to the purchaser to receive the pistol from Edwards& Co. From these circumstances the jury were justified in

finding that there had been a delivery of the pistol both byLegg and by Chabaud. Then comes the question, whetherthe permit given by Chabaud affords any defence to either

of the accused. To decide this, we must look at its form.

All the permit says is that permission is given to Edwards& Co. to sell a revolver to Walton. But that permit is notin terms of the requirements of the 13th section of the

Ordinance. It does not say that Walton is to the knowledgeof Chabaud, a J.P., a fit and proper person to obtain suchpistol. This seems to me to be a substantial variance fromthe form given in the Schedule to the Ordinance. So that

independently of any question whether or not Chabaudcould give a certificate at all to buy from himseH, there hasbeen a contravention of the 1 3th section estabhshed underthe first count. Under the second count it seems to methat the matter is more doubtful. There a certificate in

proper form was given, and it was not specially addressed to

Edwards & Co. Moreover there was no evidence that either

Chabaud or Legg was present at the sale or deUvery of the

gun to Zwaartboy. Although in civil matters a principal

152

1877.Dec. 13.

Queen vs.

Chabaud.

is liable for the acts of his servants or agents acting in the

course of their employment, I do not think that the Courts

have gone so far as to extend that doctrine to a criminal

liabihty for the act of an agent, where it is not shewnthat there was a command or authority to commit the offence.

On these grounds I am of opinion that the conviction onthe first count should stand, but that there was no evidence

to go to the jury on the second count.

Denyssbn, J. : I am of the same opinion. It is a material

part of the certificate that the person desiring to purchasefirearms is known to the Magistrate or J.P. as a fit andproper person to possess them. There is no doubt that

Chabaud was present at the sale and delivery of the

revolver ; but there may be some doubt as to his cognizance

of the sale of the gun, and the Court should give the accusedthe benefit of such a doubt.

FiTZPATEiCK, J. : I also concur.

("Crown Attorneys, Reid & Nephew.")LPrisoneis' Attorney, PIEKS. J

1877.Dec. 12.

„ 13.

„ 14.

MoLeod'5Trustees vs.

Benjamin.

McLeod's Trustees vs. Benjamin.

Insolvency.—Ord. No. 6, 1843, sect. 83.

—

Onus of proof.

In ah action to set aside, under the 83rd section of the Insol-vent Ordinance, an alienation of property made beforeinsolvency, it is for the plaintiff to prove that at the timeof the transaction challenged the insolvent's liabilities

fairly calculated exceeded his assets fairly valued, andthen the onus is upon the person upholding the transactionto show bona fides and just and valuable consideration.

The plaintiffs, who were the trustees of the insolventestate of W. McLeod & Co., sued the defendant Benjaminin an action to have a certain alienation, cession, anddelivery of certain promissory notes, and the payment ofcertain monies, declared null and void and set aside, first,under the 83rd section of the TTiHnliTi:.Ti+ ci^^Ai^.. i_ ^^.

'

153

ground that the transactions challenged were made at a i877.

time when the habihties of McLeod & Co., fairly calculated, .. is-

exceeded their assets fairly valued, and were not made bond "—

,

fide and upon just and valuable consideration ; and secondly, Trustees »«.

under the 84th section, as being made at a time when the

said insolvents contemplated sequestration, and with intent

to prefer the defendant.

The defendant pleaded the general issue.

Considerable evidence was led as to the condition of the

insolvents' estate at the date of the challenged transactions,

and also to shew the nature of joint speculations and of the

financing of bills between insolvents and defendant. As an

issue of fact, the Court found that there was both bona fides

and just and valuable consideration to support the aliena-

tions ; and also that there was not sufficient proof of con-

templation of sequestration and of intention to prefer.

Buchanan (with him Jones) appeared for the plaintiffs,

and Upington (with him Hoskyns) for the defendant.

De Villiees, C.J., in the course of his judgment, said :

There appears to me extreme inconsistency in proceeding

in the same action under both the 83rd and the 84th sections

of the Insolvent Ordinance. I should have expected anexception would have been taken to the declaration by the

defendants, but as this has not been done the Court did notthink it advisable to raise any objection, but allowed thecase to proceed under either of these two sections of the

Ordinance. By the 83rd section it is enacted that " everyalienation, transfer, gift, cession, deUvery, mortgage or

pledge of any goods or effects, moveable or immoveable,personal or real, made by any insolvent at a time when it

shall be made to appear by proof that his liabilities fairly

calculated exceeded his assets fairly valued, shall, unless thesame shaU have been made bond fide and upon just andvaluable considerations, be null and void ; and whenever the

immediate and necessary effect of any such alienation, &c., as

aforesaid, shall be to cause such an excess of liabilities over

assets, then the same to the extent to which such excess

shall have been thus produced shall be nuU and void."

Now this section may be open to criticism in as much as it

does not clearly shew upon whom is the burden of proving

Vol. VIL—Past II.- M

154

1877.Dec. 12.

„ 13.

„ 14.

McLeod'sTrustees vs.

Beiijamia.

the bona fides or otherwise of the transaction challenged,

and proving that a just and valuable consideration hadbeen given. But I think that, in cases under this section,

if the plaintiff proves the ahenation, &c., and further proves

that at the time of such ahenation the insolvent's habilities

fairly calculated exceeded his assets fairly valued, then the

person seeking to sustain the transaction should be called

upon to estabhsh the hona fides and just and valuable

consideration. In this case I am of opinion that the defen-

dant has succeeded in meeting the onus thrown upon him.

Dbnyssbn, J., concurred.

Judgment accordingly for defendant, with costs.

rPlaintilTs' Attorneys, Teedgold & HULL.]

LDetendant's Attorneys, Faikbkidge, Akdekne & Soanlen.J

END OF VOL. VII. (1877.)

LONDON

:

PEDITBD BY WILLIAM CLOWES AND SONS, LmiTED,DUKE STREET, STAMEOKD SIBBBT, S.B., AND GREAT WINDMILL STREET, W.

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